CH 1556 2006
| Jurisdiction | UK Non-devolved |
| Judge | Judge D. Williams |
| Judgment Date | 13 December 2006 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 1556 2006 |
| Subject Matter | Housing and council tax benefits |
CH 1556 2006
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1 I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. I set it aside. I direct that the decision be retaken by a tribunal in accordance with the directions below
The appeal
2 This is an appeal by the London Borough of Hounslow (“the Council”). The Council is appealing, with permission of a chairman, against the decision of the Sutton appeal tribunal on 28 10 2005 under reference U 42 173 2005 00585. The tribunal allowed an appeal by the claimant and respondent (“Ms J”) against a decision of the Council. The Council had decided that Ms J’s housing benefit could not be increased on 01 08 2004
3 Permission to appeal was allowed by the chairman because the appeal raised issues about the proper interpretation of regulations 12A and 68 of the Housing Benefit (General) Regulations 1987. On first considering the papers I indicated that if the tribunal had interpreted the relevant regulations properly then in my view there was no other error of law in its decision and the appeal should be dismissed. Ms J is qualified as a solicitor. Her case was put clearly before the tribunal both orally by counsel and in her formal written submissions. There was agreement over the key facts, including a useful chronology. The question of law identified by the chairman is therefore directly in issue. As it may raise an issue of general importance, I asked the Secretary of State if he wished to be joined as a party. The secretary of state's representative indicated that the Secretary of State wished to be joined as a party, and he was therefore joined. I directed that he be the second respondent.
4 I have now received full written submissions from all parties. No new issues have been raised since the submission of secretary of state's representative. No one asked for an oral hearing and I agree that there is no strong reason for holding one. But there should be a hearing by the new tribunal.
5 DIRECTIONS FOR THE NEW HEARING
A The rehearing will be at an oral hearing.
B The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.
C The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.
D If the claimant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.
These directions are subject to any later direction by a district chairman.
REASONS FOR THE DECISION
The facts
6 Ms J was single and living alone at the relevant time. She had rented her home from her mother (“L”) from 01 08 2003 under an assured shorthold tenancy at a rent of £125 a week. She claimed housing benefit. After an initial reference led to an assessment of benefit at slightly less than the rental level, the rent officer on 21 11 2003 assessed the rent at £125 a week for the benefit period from 28 7 2004 to 25 7 2005. The Council paid benefit to Ms J. On 10 02 2004 L served notice of an increase of rent to £150 and on 01 08 2004 the rent was increased to that level. On 7 08 2004 Ms J applied for an increase in her housing benefit. On 18 11 2004 the Council apologised for the delay. But it stated that a rent increase could not be considered until 52 weeks after the date of the last reference to the rent officer. Following representations by Ms J, the Council assessed Ms J’s housing benefit at £150, but only from 22 11 2004. Further correspondence followed in which the Council offered, but Ms J rejected, the opportunity to apply for discretionary benefit. A formal appeal was made by Ms J.
7 Behind that chronology are several issues of law. Some were made clear in a letter from the Council to Ms J dated 10 10 2003. This gave a full apology to Ms J for delay and confusion in handling her application for housing benefit, and lack of information to her about it. But it then raised an issue under regulation 7(1)(h) of the Housing Benefit (General) Regulations 1987 (“the Regulations”) and another under regulations 37 and 45 of the Regulations. Ms J had previously been the owner of the house in which she was now a tenant. The Council had to be satisfied that Ms J could not have continued to live in the house without letting go of ownership. In addition, regulations 37 and 45 required that consideration be given to any net proceeds of sale of the house received by Ms J, and to the capital she possessed during the period. Ms J was asked to provide details relevant to both those issues. After the production of documents and a meeting of both parties, the Council accepted on 13 11 2003 that Ms J was entitled to benefit and none of these points are in issue. But this correspondence explains why the key reference to the rent officer was made in November 2003 and not at the date of claim.
8 The decision to refuse to allow the increase in benefit before 22 November 2004 was also the subject of correspondence. The decision was originally based on regulation 12 of the Regulations. It became common ground that regulation 12 was irrelevant and that the basis for the Council’s decision was regulation 12A of the Regulations.
The tribunal decision
9 The tribunal held an oral hearing at which Ms J was represented by counsel and the Council by one of its officers. There were detailed submissions made about the proper interpretation of regulation 12A. The case for Ms J was also fortified by reference to article 6 of the European Convention on Human Rights and the Human Rights Act 1998 as interpreted by the deputy High Court Judge in Beaulane...
To continue reading
Request your trial