Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 31 March 2014 at Walsall under reference SC196/13/04261) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is: the claimant was not responsible for Leanne for the inclusive period from 7 January 2013 to 9 January 2014. 

Reasons for Decision

1.         For convenience, I refer in this decision only to housing benefit. Although it also applies the council tax benefit, the legislation was to like effect.

A.        History and background

2.         The claimant was entitled to housing benefit. On 7 January 2013, he signed a statement that his daughter, Leanne, was now living with him. She was born in October 2000. The local authority made enquiries of Leanne’s mother, who said that Leanne was still living with her. She was receiving child benefit in respect of her.  On 30 July 2013, the authority decided that the claimant was not responsible for Leanne.

3.         On the claimant’s appeal, the First-tier Tribunal decided that Leanne had fallen within his claim for the inclusive period from 7 January 2013 to 9 January 2014, when the claimant said she had left and returned to her mother.

4.         The First-tier Tribunal refused permission to appeal, but I gave the authority permission and allowed the claimant one month in which to respond. He has not done so. I allowed the authority to make any final submissions it wished to make and it has done so. The case is ready for decision.

B.        Why the tribunal went wrong in law

5.         The amount of the claimant’s entitlement depended on how his income compared to the applicable amount fixed under regulation 22 of, and Schedule 3 to, the Housing Benefit Regulations 2006. That amount in turn depended on whether Leanne was a child who was a member of his family (regulation 22(b)).

6.         Was Leanne a child? A child is a person under the age of 16 (regulation 2(1)). As she was born in 2000, she was a child.

7.         Was she a member of his family? Section 137(1)(c) of the Social Security Contributions and Benefits Act 1992 defines ‘family’ as ‘a member of the same household for whom that person is responsible and who is a child’. This leads to regulation 20. Regulation 20(1) provides that a person is responsible for a child who is ‘normally living with him’. Regulation 20(3) provides that only one person can be responsible for a child in any benefit week.  Regulation 20(2)(a) provides that when ‘where there is a question as to which household [the child] is living in, the child … shall be treated … as normally living with the person who is receiving child benefit in respect of him’. In this case, there is no dispute that Leanne’s mother was receiving child benefit in respect of her. The only question is: was there a question as to which household Leanne was living in?

8.         In my grant of permission, I raised the issue of when a question arose:

This is a difficult expression to understand. Paragraph (2) has to be interpreted in the context of the regulation as a whole. It must not be interpreted in a way that renders other paragraphs redundant. It is not an excuse for a local authority to avoid the need to investigate. It clearly applies if, having investigated, there is no evidence on the matter or if the evidence is insufficient for the local authority or tribunal to make a soundly based finding. But what is sufficient to raise a question? Would any dispute by the other parent be enough or is something more required and, if so, how much more? On basic principle, if there is more evidence before the First-tier Tribunal, it is entitled to substitute its findings for those of the local authority, which is what the tribunal did in this case.

9.         I am satisfied by the local authority’s submission that a question had arisen in this case. There was a statement by Leanne’s father that she was living with him and a counter statement by Leanne’s mother that she was living with her. The local authority had given the claimant time to provide evidence that he had secured entitlement to child benefit, but he did not reply. In the circumstances of this case, that was sufficient to raise the question. Without attempting to define the circumstances in which a question does arise, there were counter assertions which the authority had investigated and a conflict between the claimant’s assertion and the award of child benefit.

10.      The authority has also provided me with a note of enquiries made by social services in December 2013, following allegations made by the claimant. Those enquiries were long after the date of decision, but the result was that social services were satisfied, among other matters, that Leanne was resident with her mother. That at least contradicts the claimant’s evidence to the tribunal that she did not move back with her mother until January 2014.

11.      All that remains, therefore, is to apply regulation 20(2). There was a question and there was a person, Leanne’s mother, who was receiving child benefit in respect of her. Only one person could be responsible for Leanne in any benefit week, and that was her mother, not the claimant. On the information before the First-tier Tribunal, that was the only conclusion it could properly have reached had it directed itself properly on the law. I have no alternative other than to set aside the tribunal’s decision and re-make it to confirm the decision made by the local authority.

C.        Joining Leanne’s mother as a party

12.      In giving permission to appeal, I also said:

There is also an issue whether the tribunal should have made Leanne’s mother a party to the proceedings so that she would be bound by the tribunal’s decision.

The local authority’s representative has agreed with that comment. In the event, the decision I have given does not have any adverse effect on Leanne’s mother and this issue no longer arises.