MB CH 199 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 08 August 2011 |
| Neutral Citation | 2011 UKUT 321 AAC |
| Subject Matter | Capital |
| Respondent | Royal Borough of Kensington & Chelsea |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 199 2011 |
| Appellant | MB |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the claimant’s appeal.
The decision of the London Holborn First-tier Tribunal dated 8 February 2010 under file reference 242/09/11470 involves an error on a point of law. The First-tier Tribunal's decision is set aside. The case is remitted to a new First-tier Tribunal for a re-hearing subject to the Directions listed below.
This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
DIRECTIONS
The following directions apply to the re-hearing:
(1) The re-hearing should be at an oral hearing;
(2) The new tribunal should be differently constituted from the First-tier Tribunal which considered this appeal at the hearing on 8 February 2010;
(3) The file in this case and any connected appeals involving the same claimant and relating to the same property in Ireland should be placed before a District Tribunal Judge of the First-tier Tribunal for consideration as to whether a case management hearing is required before the re-hearing;
(4) The local authority should produce all relevant material relating to the decisions under appeal;
(5) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.
These directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Summary of the Upper Tribunal’s decision
1. I allow the claimant’s appeal to the Upper Tribunal. I am doing so because there is a legal error in the decision of the First-tier Tribunal. This is because I find that three of the claimant’s four grounds of appeal are made out. I am also setting aside the First-tier Tribunal’s decision. There will need to be a re-hearing. Although it is a matter for the District Tribunal Judge who gives directions for re-listing, it may well be helpful to have a case management hearing prior to re-listing. The fact that this appeal to the Upper Tribunal has been successful should not be taken as any indication as to the likely outcome of the re-hearing before the First-tier Tribunal.
An outline of the complex background to this appeal
2. The factual background to the present appeal is exceedingly complex. What follows is a summary sufficient for the purposes of the present decision. The claimant, an Irish national, is a widow and lone parent now aged 36. On 20 December 2007 she made a claim to the Royal Borough of Kensington & Chelsea (RBK&C) for HB and CTB in respect of her home (“No 54”). She said that she had moved there from her previous address in the Royal Borough of Kingston-upon-Thames (RBKuT). On 7 January 2008 the RBK&C awarded her HB and CTB with effect from 14 December 2007. In April 2008 the claimant told the RBK&C that she had recently moved from No 54 to another address in the same borough.
3. Shortly afterwards the RBK&C started an investigation into her claim for benefit. The referral memo from one of its assessment officers asserted that “her lifestyle appears to be beyond the means of someone living on such a low income”. It was alleged that she drove a Lexus with a personalised number plate, she was “always immaculate(ly turned out) … and her clothes etc look very expensive too” and (according to bank statements) she shopped at Harrods. It was suspected that she had an undisclosed source of income. RBK&C officers interviewed the claimant at length under caution on 9 September 2008, when they questioned her about, amongst other matters, how she could afford to pay for her two children to attend private school and also to maintain a gym membership. The RBK&C later established (through the Irish Land Registry) that the claimant was the registered owner of a residential property in the Republic of Ireland.
4. On 28 January 2009 the RBK&C issued two decisions. The first (the entitlement decision) was to the effect that the claimant’s revised benefit entitlement to HB and CTB as from 14 December 2007 was nil. This was said to be because she owned property worth more than £16,000 which she had failed to disclose to the RBK&C. The second (the overpayment decision) was that as a result there had been a recoverable overpayment of £24,907.30 in HB and of £1,518.65 of CTB. The claimant appealed to the First-tier Tribunal (“the tribunal”).
5. In its written submission to the tribunal, the RBK&C argued in summary that (i) the claimant was both the legal and beneficial owner of the property in Ireland (“No 27”); (ii) she had been working and not disclosing her income while in receipt of HB and CTB; and (iii) she had lied in order to claim benefits in that it was alleged that she had simultaneously been claiming benefit in both the RBK&C and the RBKuT.
The First-tier Tribunal’s decision
6. The First-tier Tribunal heard the claimant’s appeal on 8 February 2010. The claimant attended the hearing as did an officer from the RBK&C. The tribunal dismissed her appeal. Its decision, confirming the local authority’s decisions of 28 January 2009, was that there had been recoverable overpayments of both HB and CTB. The Tribunal Judge helpfully gave summary reasons on the Decision Notice as follows:
“Brief reasons:
1 [The claimant] owned a property in Ireland. The equity was at least 100,000 euros. Even if she did not own the whole property (which I did not accept) she had put £25,000 into the property and therefore had capital well in excess of £16,000 that she had not disclosed to the Local Authority.
2 She had earnings of 91,540 euros as set out in page 50 of the submission.
3 She had not made full disclosure of her bank accounts.
4 Her income and capital exceeded the limits for Housing Benefit and Council Tax Benefit.
5 She was the sole registered proprietor of the property in Ireland. There was no evidence of a trust. The mortgage was in her sole name.”
7. The Tribunal Judge subsequently issued a short statement of reasons, elaborating a little on that decision – but only a little, given the statement ran to nine short paragraphs and covered less than a single side of A4 of text. On the capital issue, the Tribunal Judge reasoned as follows:
“6 As far as capital was concerned [the claimant] was the sole owner of No 27. There was a charge in favour of [an Irish bank]. No 12 [a property in the same street] was valued at approximately 379,000 euros which gave a useful comparison for No 27. The equity was at least 100,000 euros which meant that [the claimant] had capital in excess of £16,000. She was not living in the property. It was rented out.
7 [The claimant] said that she inherited about £100,000 on the death of her husband. She said that she got £75,000 which included £25,000 for each of her 2 children. Her £25,000 share was put into the house in Ireland. It could not therefore be disputed that she had capital of at least £25,000.”
8. So far as the claimant’s income was concerned, the Tribunal Judge reasoned as follows:
“8 The claimant] claimed to be in difficult financial circumstances. In 2006 she earned a profit of £42,670 (see page 49). For the year ending October 2007 her income was £91,540. This was confirmed by a letter signed by her accountant (page 50). I was not prepared to go behind this statement. It was a declaration of income by a professional person. [The claimant] therefore also had income that excluded her from Housing Benefit.”
The claimant’s appeal to the Upper Tribunal
9. The claimant’s application for permission to appeal from the tribunal’s decision to the Upper Tribunal was refused by a District Tribunal Judge. She renewed the application before the Upper Tribunal. It is fair to say that the claimant’s initial application was not well focussed; for the most part it sought to re-argue the facts, and although she provided further potentially relevant evidence, this had not been shown to before the tribunal below. In addition she enclosed copies of extensive documentation relating to her various debt and medical problems.
10. The claimant subsequently secured representation through the good offices of the Free Representation Unit (FRU). Mr Giles Robertson of FRU prepared a detailed written submission on her behalf, identifying, refining and developing the grounds of appeal and referring to relevant case law. The RBK&C took up the opportunity to reply in writing to that submission. I then held an oral hearing of the application for permission to appeal at Harp House on 24 May 2011. Mr Robertson appeared for the claimant; the RBK&C did not attend (and indeed had not...
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