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Cite as: [2015] UKUT 46 (LC)

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UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2015] UKUT 46 (LC)

LT Case Number: LRX/106/2013

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

LANDLORD AND TENANT – service charges – whether LVT order that fees be reimbursed was lawful – no obligation on LVT to enquire whether the appellant was in receipt of a qualifying benefit – regs 8 & 9 Leasehold Valuation Tribunals (Fees) England Regulations 2003 – First Tier Tribunal entitled to conclude there was no procedural irregularity for the purposes of rule 51(2)(d) Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE

LEASEHOLD VALUATION TRIBUNAL FOR THE

LONDON RENT ASSESSMENT PANEL

BETWEEN IRIS HYSLOP Appellant

and

38/41 CHG RESIDENTS COMPANY LIMITED Respondent

Re: Flat 5

41 Craven Hill Gardens

London W2 3EA

Determination by written representations

The following cases were referred to in this decision:

R v Liverpool City Justices, ex-parte Grogan [1991] CAD 148

Blyth v Blyth [1966] AC 643

R v Northallerton Magistrates Court, ex-parte Dove [2001] Cr App R (S) 136

DECISION

Introduction

1. This is an appeal against a decision of the Leasehold Valuation Tribunal for the London Rent Assessment Panel (“the LVT”) dated 3 June 2013 in which it ordered the appellant to reimburse fees paid to the LVT in proceedings relating to service charges.

2. Ms Iris Hyslop (“the appellant”) is the lessee of premises at Flat 5, 41 Craven Hill Gardens, London W2 3EA which forms part of a complex of 36 flats. The freehold of the building is owned by 38/41 CHG Residents Company Limited (“the Lessor”), a company made up of 34 out of the 36 leaseholders. The appellant having failed to pay service charges, the Lessor applied to the LVT for a determination as to her liability to pay service charges for the years 2011/12 and 2013/14. The LVT decided that, subject to a deduction to reflect accountancy charges, the service charge for the year 2011/2012 is reasonable and payable by the appellant and the service charge estimate for 2013/14 is reasonable and any payment on account based on that estimate is payable. Further, the LVT ordered the appellant to pay to the Lessor £350 in respect of the fees it had paid to the LVT in respect of the application and made an order for the appellant to pay the Lessor’s costs in the sum of £420.

3. The appellant appealed to the Tribunal against that decision on a number of grounds including that the LVT failed to have regard to the Leasehold Valuation Tribunals (Fees) England Regulations 2003 (2003/2098) (“the Fees Regulations) regulations 8 and 9 which the appellant contends require the LVT to satisfy itself that the appellant was not in receipt of any of the specified benefits.

4. On 24 September 2013 the Tribunal (Martin Rodger QC, Deputy President) ordered a stay of the application for permission to appeal. The order states that if Regulation 9(1) of the Fees Regulations was not raised at the hearing, so that the applicant had the opportunity to inform the LVT if she was in receipt of a relevant benefit, it is arguable that there had been a procedural irregularity. The LVT (now the First-tier Tribunal Property Chamber (Residential Property) (“F-tT”)) should have an opportunity to consider the matter and the appellant was directed to apply to the F-tT under rule 51(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (2013/1169) (“the Procedure Rules”) to request it to set side and remake that part of its decision relating to reimbursement of fees.

5. On 18 October 2013 the appellant duly applied to the F-tT under Rule 51(1). By a letter dated 18 November 2013 the F-tT wrote to the appellant seeking additional information to which the appellant replied on 26 November 2013. On 10 March 2014 (the decision is wrongly dated 2013) the F-tT refused to set aside or remake the decision relating to reimbursement of the Lessor’s fees.

6. In due course on 9 September 2014 the Tribunal (Martin Rodger QC, Deputy President) granted permission to appeal against the order that the appellant should pay £350 reimbursement of fees paid by the Lessor, to be dealt with by way of review, but refused permission to appeal on all other grounds. Following that order the appellant submitted a notice of appeal in which she asked for the appeal to be dealt with by the written representations procedure. The Lessor has not served a respondent’s notice or played any part in the appeal.

The LVT and F-tT decisions

7. The Fees Regulations were in force at the date of the LVT decision on 3 June 2013 and provide, so far as relevant, as follows:

“8(1) A person shall not be liable to pay any fee due under these Regulations where on the relevant date, he or his partner is in receipt of –

(a) either of the following benefits under Part 7 of the Social Security Contributions and Benefits Act 1992—

(i) income support; or

(ii) housing benefit;

(b) an income-based jobseeker’s allowance within the meaning of section 1 of the Jobseekers Act 1995;

(d) guarantee credit under the State Pensions Credit Act 2002; or

(e) a certificate—

(i) which has been issued under the Funding Code and which has not been revoked or discharged; and

(ii) which is in respect of the proceedings before the tribunal the whole or part of which have been transferred from the county court for determination by a tribunal.

...

9(1) Subject to paragraph (2), in relation to any proceedings in respect of which a fee is payable under these Regulations a tribunal may require any party of the proceedings to reimburse any other party to the proceedings for the whole or part of any fees payable by him in respect of the proceedings.

(2) A tribunal should not require a party to make such reimbursement if, at the time the Tribunal is considering whether or not to do so, the tribunal is satisfied that the party is in receipt of any of the benefits, the allowance or a certificate mentioned in Regulation 8(1).”

The benefits, allowance and certificate referred to in regulation 8(1) will be referred to in this decision as a ‘qualifying benefit.’

8. The F-tT decision dated 3 June 2013 simply says this:

“36. The Applicant has been very largely successful. The small issues on which they were not successful were not raised by the Applicant but were raised by the Tribunal during the hearing. Accordingly it is fair for the Respondent to pay to the Applicant the fees that it is paid to the Tribunal in the sum of £350.”

9. In her Grounds of Appeal in support of her application for permission to appeal to the Tribunal the appellant said that:

“1. Fees and Costs were not discussed at the hearing. No decision was made at the hearing. The Rules referred to require the tribunal to satisfy themselves that benefits are received: this did not happen, and the subject was not broached.”

10. In its letter to the appellant dated 18 November 2013 inviting the appellant to provide further information for the purposes of her application for the F-tT to set aside and remake its decision the F-tT said:

“6. …the Tribunal members have checked their notes taken at the hearing held in May this year. Those written notes clearly record that the issue of fees and costs was raised and was discussed at the conclusion of the hearing. The notes specifically record the respondent making an oral submission to the Tribunal opposing the Applicant’s application for a fee reimbursement order.”

11. In her response dated 26 November 2013 when dealing with this issue the appellant said:

“The leaseholder (Respondent) also made notes. The rules referred to above require the LVT to satisfy themselves the benefits received: this did not happen, and the subject was not broached. This was not in the interest of justice Rule 51(1) and was a procedural irregularity Rule 52(2). The chairperson is aware that not all relevant documents were made available by the landlord.

No reason is given why the panel failed to raise this matter when they were already aware of this information from their records. The evidence provided in letter 25.2.13 refers to Pension Credit to be received from April 2013: the hearing was on 13.5.2013 and therefore covered the relevant period. Please advise if another period is requested.

No decision of fees and costs were made at the hearing. These were not discussed at the hearing. The tribunal’s notes may refer to the chairperson putting pressure on the leaseholder to request S.20C of the Landlord and Tenant Act 1985. As pointed out this was irrelevant as the landlord (Applicant) would place this on the leaseholder’s service charge anyway. There is no way the LVT would know if this had been done, as at the LVT the landlord does not have to explain the amounts placed under headings on a Budget or Summary.”

There is no dispute that Pension Credit is a benefit covered by regulation 8(1)(d) of the Fees Regulations and is therefore a qualifying benefit.

12. The F-tT considered the request to set aside and remake the decision relating to reimbursement of fees in the following paragraphs:

“17. Mr Banfield and myself, two of the members of the Tribunal who heard the original proceedings, have consulted our notes (made contemporaneously at the hearing) as to the question of fees and costs. Those notes specifically record the Respondent making an oral submission to the Tribunal opposing the Applicant’s application for a fee-reimbursement order. The notes do not contain any submission made by the Respondent that she was in receipt of Pension Credit or any other qualifying benefit or any mention of the, then relevant, fees regulations.

18. There was nothing in the papers to which the Tribunal was referred to in the hearing to the effect that the Respondent was or had been in receipt of any qualifying benefit.

19. We have enquired with the Tribunal Clerk as to whether the file held in respect of the matter contained any notification that the Respondent was in receipt of a qualifying benefit. We have been informed by the Clerk that the first notification of any such benefit (in relation to this case) came with the Respondent’s letter to the tribunal offices dated 18 October 2013. The Respondent’s letter of that date enclosed a copy of a letter from the Pensions Service dated 25 February 2013 and refers to Pension Credit to be received from April 2013.

20. It may well be that there is a record of the Respondent being in receipt of Pension Credit on other files held by the tribunal relating to other separate cases involving the Respondent. These files have not been checked for that information. Even if there were such records, those records would not, or would be highly unlikely to show that the Respondent was in receipt of Pension Credit at the time that the original decision was being made in these proceedings.”

13. The F-tT referred to Regulations 8 and 9 of the Fees Regulations and then continued:

“22. For regulation 9(2) to apply, it appears that a tribunal must have knowledge that a party is in receipt of benefit at the time when it is making its decision. At the time when we were making our decision, that is between the date of the hearing (13 May 2013) and the date of our decision (3 June 2013) we had no such knowledge.

23. It therefore appears to us that we had, at the time of making the decision, the power to make the fee re-imbursement order.

24. The next questions for us therefore are; first, whether under the Rules we have the power to set aside the fee re-imbursement order, and if so; second, whether we should go on to set aside that order.”

14. The F-tT went on to conclude that it had no power to set aside the decision because there had been no procedural irregularity for the purposes of Rule 51(2)(d) of the Procedure Rules and that, in any event, it was not satisfied that the appellant was in receipt of Pension Credit during the time it was making its decision on the case. On the issue of rule 51(2)(d) the LVT said:

“26. …The tribunal is under no obligation to make enquiry and satisfy itself as to whether or not a party is in receipt of a relevant benefit. If, when costs and fees are being discussed, a party does not point out that he or she is in receipt of such a benefit and if the tribunal has no reason to believe that a party is in receipt of such a benefit, the tribunal is entitled to assume that there is no bar to the making of a fee-reimbursement order.”

15. Having received the F-tT decision dated 10 March 2014, the appellant wrote to the F-tT on 19 March 2014 taking issue with many of the points made in the decision. So far as relevant for the present purposes the appellant said this:

“6. The Leaseholder’s benefits and fees were not discussed at the hearing 3.6.2013. The tribunal did not satisfy themselves that the Leaseholder was in receipt of relevant benefits in accordance with the rules. The letter 23.2.2014 from the officer of the landlord company who attended the hearing did not support that this had been discussed: it is incorrect to say he did.

…

[in comments on the F-tT’s quote from her letter dated 26.11.13] Any reference to fees at the LVT hearing was in regards to S20C which the chairperson pressurised the respondent’s request. The Leaseholder pointed out at the hearing that a decision regarding such was irrelevant…

[in comments on the paragraph numbers of the F-tT decision]

18.(17) Any notes claiming that fees other than those regarding S20C were discussed are incorrect. This was specifically remembered as the idea that S20C would make any difference either way to the charges being placed on the Leaseholder’s service charge was unrealistic…

19.(18) As already stated the matter was not raised.

21.(20) If files were checked in relation to this matter perhaps the chairperson would be aware of this as being a qualifying benefit.

23.(22-23) Regulation 9(2) states that… They could not be satisfied as it had not been discussed …

25.(26) This is incorrect as it is stated clearly that the tribunal is under an obligation to satisfy itself on this point. The Leaseholder paying the landlord’s fees was not discussed: no interest was expressed and the decision on the landlord’s unsupported estimate for the budget was not made at that time.”

16. The grounds of appeal against the F-tT’s decision of 10 March 2014 again assert that regulation 9(2) of the Fees Regulations specifically requires the Tribunal to be satisfied that the party is in receipt of the relevant benefit and that they cannot be satisfied without inquiry into the matter. The grounds continue:

“6. Fees and costs were not discussed at the hearing of 13.05.2013. No decision was made at that time: the tribunal’s decision was 3.6.2013. It is usual for Costs and Fees to follow decisions. Had the Tribunal wished to satisfy themselves that the leaseholder was in receipt of relevant benefits, they could have done so at the hearing: they had the opportunity. They could also have enquired later before making their decision.”

Decision

17. The appellant’s case is that, by virtue of regulation 9(2) of the Fees Regulations, before making an order for reimbursement of a fee the LVT was under an obligation to make enquiries as to whether or not the party is in receipt or a qualifying benefit for the purposes of regulation 8(1). It appears to be common ground that at the F-tT hearing on 13 May 2013 the F-tT did not enquire about and no consideration was given to the issue of whether the appellant was in receipt of a qualifying benefit for these purposes. The F-tT’s decision dated 10 March 2014 makes it clear that it considers the F-tT to be under no obligation to make any such enquiries. If the F-tT has no reason to believe that a party is in receipt of such a benefit it is entitled to assume that there is no bar to the making of a fee reimbursement order. Whether that is correct is the main issue in this appeal.

18. Regulations 8 and 9 of the Fees Regulations are expressed in quite different terms. Regulation 8 provides that a person “shall not be liable to pay any fee due” where he or his partner is in receipt of a qualifying benefit on the relevant date. This appears to treat liability to pay fees as absolutely dependant one way or the other on receipt of a qualifying benefit. Thus, whether or not the tribunal has power to require payment of a fee is dependant on a precedent fact namely receipt of a qualifying benefit. If a fee was paid and it later emerged that at the relevant time the party was in receipt of a qualifying benefit then the fee would have to be repaid.

19. By contrast regulation 9(2) provides that a tribunal shall not require a party to reimburse a fee if “at the time the tribunal is considering whether or not to do so, the tribunal is satisfied that the party is in receipt of relevant benefit”. Thus, regulation 9(2) appears to envisage that the power to make a reimbursement order is dependant upon the view the Tribunal takes at the time a decision whether or not to make the order is made. The tribunal’s power to order reimbursement of a fee depends on whether “it is satisfied that” the party is in receipt of a qualifying benefit at the time it is considering whether or not to make the order. If at the time the Tribunal is considering whether or not to order reimbursement, the tribunal expressly considers whether or not the party is in receipt of a qualifying benefit and is entitled to be satisfied on the evidence that no qualifying benefit is being received then there is power to make the order, even if it later turns out that the party is in fact in receipt of a qualifying benefit. Does the phrase “it is satisfied that” impose an obligation on the LVT to make enquires as to whether the party is in receipt of a qualifying benefit?

20. No assistance is to be gleaned from the updated regulations which apply from 1 July 2013. These provide that no fee is payable if the applicant is granted a fee remission on application to the Lord Chancellor and an applicant is eligible for a fee remission if s/he is in receipt of a qualifying benefit, paragraph 2, Schedule 2 to The First-tier Tribunal (Property Chamber) Fees Order 2013 (SI 2013 No. 1179). There is a power to order reimbursement of any fee paid which has not been remitted, but no longer any power not to order reimbursement of the fee on the grounds of receipt of a qualifying benefit, see rule 13(2) of the Procedure Rules.

21. Consideration as to whether a court or tribunal “is satisfied” as to a matter of fact is a commonly employed legislative tool. In consequence, the meaning of that phrase has been considered in a number of previous authorities. However, the majority of them address the question as to the standard of proof on which the court or tribunal must be satisfied. For example, in R v Liverpool City Justices, ex-parte Grogan [1991] CAD 148 the Divisional Court held that whether a Magistrates Court “is satisfied that” a person remanded is unable to appear by reason of illness or accident imposed a high test requiring solid grounds upon which the court could reasonably find a reliable opinion. In Blyth v Blyth [1966] AC 643 it was held the words “is satisfied on the evidence that” the petitioner has not condoned adultery in order to pronounce a degree of divorce did not require proof beyond reasonable doubt only on a balance of probability. Neither of these decisions directly addresses the issue which arises in this appeal. However, it is worth noting that, despite the s.4(2) of the Matrimonial Causes Act 1950 imposing a separate duty on the court to enquire into, inter-alia, whether there has been any condonation by the petitioner, in Blyth Lord Denning said that the word “satisfied” deals with the incidence of proof:

“It shows on whom the burden lies to satisfy the court, and not the degree of proof which he must obtain.” page 667F

In other words, although the court is under a duty to enquire, the phrase “is satisfied that” imposes an obligation to provide the proof or evidence on the party seeking to satisfy the court as to the relevant matter.

22. Of more relevance are those provisions relating to the award of costs in other areas. Although the power to award costs in civil proceedings is not expressed to require the court to be satisfied as to a party’s means, that is expressed to be a relevant consideration when costs are awarded against defendants in criminal proceedings. By virtue of s.18 of the Prosecution of Offences Act 1985 the court may order the defendant to pay costs in certain circumstances. The relevant practice direction (dated 23 July 2014) provides in paragraph 3.4 that:

“An order should be made where the court is satisfied that the defendant or appellant has the means and the ability to pay.”

23. The principles on which costs are to be awarded are set out in R v Northallerton Magistrates Court, ex-parte Dove [2001] Cr App R (S) 136 at pages 142-143 (at which time the relevant practice direction was in same terms as above):

“(1) An order to pay costs to the prosecutor should never exceed the sum which, having regard to the defendant’s means and any other financial order imposed upon him, the defendant is able to pay and which it is reasonable to order the defendant to pay…

(5) It is for the defendant facing a financial penalty by way of fine or an order to pay costs to a prosecutor disclosed to the magistrates such data relevant to his financial position as will enable Justices to assess what he can reasonably afford to pay. In the absence of such disclosure Justices may draw reasonable influences as to the defendant’s means from evidence they have heard and from all the circumstances of the case. I would draw attention to the proposition stated in the second volume of Dr Thomas’ Current Sentencing Practice at paragraph J1-2G where it is stated:

“It is the obligation of the offender to put before the sentencer any information about his means that he wishes the sentencer to take into account in determining the amount of the fine. If he fails to do so, the sentencer is not obliged to make inquiries on his own initiative.”

I would also draw attention to the authority cited in support of that proposition: Wright (unreported November 12 1976). In the course of giving judgment in that case Lord Widgery CJ said:

“It is of course a fundamental principle of sentencing that financial obligations must be matched to the ability to pay, and there is an overriding consideration that financial obligations are to be subjected to that test. But that does not mean that the court has to set about an inquisitorial function and dig out all of the information that exists about the appellant’s means. The appellant knows what his means are and is perfectly capable of putting them before the court on his own initiative. If, as happened here, the court is only given the rather meagre details of the appellant’s means, then it is the appellant’s fault.”

(6) It is incumbent on any court which proposes to make any financial order against the defendant, whether by way of fine or costs, to give the defendant a fair opportunity to adduce any relevant financial information and make any appropriate submissions. If the court has it in mind to make any unusual or unconventional order potentially adverse to a defendant, it should alert the defendant and his advisers to that possibility.”

24. Paragraph 3.4 of the Criminal Practice Direction is expressed in more positive terms than regulation 9(2) of the Fees Regulations. It says that an order should be made where the court is satisfied that the defendant has the means to pay whereas regulation 9(2) says that the tribunal shall not require a party to make reimbursement if it is satisfied that the party is in receipt of a qualifying benefit. It could be said that in the case of paragraph 3.4, it is for the party seeking an order for costs to persuade the court that the defendant has the means to pay. That is not how paragraph 3.4 is interpreted in Dove. This is not surprising given that information as to the defendant’s means will almost always be in the exclusive knowledge of the defendant. However, if, notwithstanding the positive terms in which paragraph 3.4 was expressed, the onus is on the defendant to put forward his means it is difficult to see why regulation 9(2) should be interpreted as imposing an inquisitorial function to find out whether the party is in receipt of a qualifying benefit. This is again information that will be in the exclusive knowledge of the relevant party.

25. In my judgment having regard to the principles set out above and the wording of paragraph 9(2), that provision does not require the F-tT to make enquiry as to whether a party is in receipt of a qualifying benefit unless that issue is raised by one of the parties or arises in some other way from the material before the F-tT. Plainly, it would be wrong of the F-tT to make an award of costs or order reimbursement of fees without giving the paying party an opportunity to make any representations that it wished to about whether or not an order should be made. However, having done so it is for the paying party to raise any objection it wishes to make to such an order whether relating to the merits of the case, that party’s means or receipt of a qualifying benefit such as would engage regulation 9(2). I therefore reject the appellant’s main complaint about the F-tT decision.

26. However that does not determine the appeal because the appellant argues that, quite apart from not enquiring about whether she was in receipt of a qualifying benefit, neither did the F-tT say anything at all at the hearing about the issue of an order for reimbursement of fees. If that is true, then having regard to the view I have formed as to the correct approach, the F-tT’s decision is flawed and should be set aside.

27. I have set out the appellant’s contentions at some length above. The appellant’s case in this appeal is that fees and costs were not discussed at the hearing on 13 May 2013 other than the issue of whether an order should be made under S.20C of the Landlord and Tenant Act 1985. This is flatly contradicted by the F-tT which says (paragraph 17 of the decision dated 10 March 2014) that the notes of two members of the F-tT who heard the original proceedings record the appellant making an oral submission opposing the Lessor’s application for a fee reimbursement order. The F-tT drew the appellant’s attention in its letter dated 18 November 2013 to the content of those contemporaneous notes so as to give her an opportunity to comment. Her response dated 26 November 2013 is instructive. The first point she makes is that she also made notes. However she has not produced those at any stage during the proceedings before the F-tT or in this appeal. The next point she makes is that the Fees Regulations require the F-tT to satisfy itself that benefits are received. Then she states that this information should have been available to the F-tT from its records. Only in the third paragraph does she assert that fees and costs were not discussed at the hearing and then only after stating that no decision on fees and costs was made at the hearing.

28. It appears from this that the only note the appellant has (though she has not produced it) relates to the issue of an order under s.20C of the Landlord and Tenant Act 1985. That does not mean that no other discussion about fees or costs took place, only that the appellant does not have a note of it. It may be that, for the reasons she gives, the s.20C issue was a memorable discussion for her whereas anything else said about costs and fees was not (see also the appellant’s response to the F-tT decision of 10 March 2014). Self-evidently no decision on the issue of fees and costs was made at the hearing because the F-tT had not at that stage issued its decision. It may be that the appellant wrongly believed she would have an opportunity to address the issue of fees and costs again once the F-tT’s decision had been issued and therefore did not make all of the points she would have wished to when the Lessor applied for reimbursement of its fees. Whether or not that is the case, her letter dated 26 November 2013 does not put lack of any discussion about fees at the forefront of her case and the statement that there was no discussion about fees at all is in any event contradicted by her acceptance that costs under s.20C were discussed.

29. The appellant points out that a letter from the Lessor does not say that fees and costs were discussed at the hearing. This letter dated 23 February 2014 from the Lessor to the F-tT does not address the question of what was or was not said at the hearing about costs and fees. Rather it complains about the difficulty it has had getting the appellant to pay service charges. Accordingly it does not take the matter any further one way or the other.

30. The F-tT refers to cogent and contemporaneous evidence of a specific application by the Lessors for reimbursement of fees and the appellant expressing opposition to such an order. In contrast, the appellant’s assertions are contradictory and inconclusive. This is the appellant’s appeal and the onus is on her to prove that the F-tT failed to give her any opportunity to make submissions as to whether a fee reimbursement order should be made and in my judgment she has failed to discharge that burden.

31. I note that the appellant does not challenge the LVT’s decision to award costs against her in the sum of £420. If it were the case that she was not given an opportunity to make representations at the hearing about costs and fees she could be expected to have complained in this appeal that the award of costs was unfair as well but she has not done so. I also take the view that it would be very unusual indeed if the LVT had not invited any discussion about costs and fees at the conclusion of a hearing.

32. Further, as to the assertion in her letter dated 26 November 2013 that the F-tT had information in the records that the appellant was in receipt of Pension Credit, she does not refer to or produce any evidence to show that information was at any stage sent to the LVT prior to its decision dated 3 June 2013 whether in the current or any other proceedings.

33. In the light of that there are no grounds for arguing that the F-tT fell into error in its decision dated 10 March 2014 when it concluded that there had been no procedural irregularity in the proceedings for the purposes of Rule 51(2)(d) such as to justify setting aside its earlier decision to make the fee reimbursement order.

34. Although it does not affect the F-tT’s refusal to set aside and remake the decision or the outcome of this appeal, the Tribunal accepts that the appellant was in receipt of Pension Credit, a qualifying benefit, at the time of the F-tT decision in June 2013. The letter which the appellant produced from the Department for Work and Pensions dated 25 February 2013 quite clearly refers to her being paid Pension Credit and the amount that she would be paid from April 2013. This is a straightforward letter such as anyone might receive setting out their entitlement to the level of a particular benefit from the beginning of the next tax year. In my judgment, absent any evidence to the contrary, there would be no proper basis for rejecting the letter as evidence that the appellant was in receipt of Pension Credit during the LVT proceedings in this case. However, as I have already said, it was for the appellant to raise that issue at the hearing and she did not do so. There was no evidence on which the F-tT could be satisfied that she was in receipt of Pension Credit and there was no material error in the F-tT’s later decision that there had been no procedural irregularity to justify setting the earlier decision aside. This appeal is dismissed.

35. This decision is final. The respondent has not participated in the appeal which has failed and accordingly no question of costs arises so far as the appeal is concerned.

Dated: 16 February 2015

Her Honour Judge Alice Robinson