PJ CPC 2412 2013

JurisdictionUK Non-devolved
JudgeOther Judges / Other Commissioners/Deputy Commissioners
Judgment Date01 April 2014
Neutral Citation2014 UKUT 152 AAC
Subject MatterTax credits and family credit
RespondentSecretary of State for Work and Pensions (SPC)
CourtUpper Tribunal (Administrative Appeals Chamber)
Docket NumberCPC 2412 2013
AppellantPJ
IN THE UPPER TRIBUNAL

IN THE UPPER TRIBUNAL Case No. CPC/2412/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision: I set aside the decision of the tribunal but substitute my own decision dismissing the appeal of the claimant from the decision of a decision maker dated 17 February 2012 that, inter alia, the claimant was not entitled to an additional amount of pension credit in respect of housing costs until 22 December 2010.

REASONS FOR DECISION

  1. This appeal is brought with the permission of the Tribunal Judge from a decision of the First-tier Tribunal confirming a decision of the Secretary of State made on 23 August 2011. Despite the fact that the submissions made to him by both parties were on the basis that the decision being appealed was that made on 23 August 2011, it is plain for the reasons given by Judge Poynter in his Direction dated 13 December 2013 that (1) the decision given on 23 August 2011 was a decision revising an earlier decision of 30 June 2011; (2) the revised decision of 30 June 2011 was successfully appealed by the claimant to the tribunal, which had decided on 21 January 2012 that the claimant was entitled to state pension credit from 27 August 2008 and had directed the Secretary of State to re-assess the claimant’s entitlement from that date

  1. There followed an award dated 17 February 2012 in which it was determined that the claimant was not entitled to housing costs until 22 December 2010. It was that appeal which was before the tribunal despite the fact that there was no copy of the decision on the file. Judge Poynter was concerned that if, as the tribunal found, the claimant did not normally occupy the relevant property as his home, its capital value should have been taken into account in assessing his entitlement to state pension credit. Now that a copy of the decision has been provided, it can be seen that the capital value was considered, but that it was decided that the amounts secured by mortgage on the property exceeded its value so that it was in negative equity and there was no capital value for state pension credit purposes

  1. The tribunal was in error of law in failing, with assistance from the decision maker, to identify the correct decision under appeal and its decision purports to confirm the revising decision of 23 August 2011. I therefore set it aside.

  1. It appears to me that this is a case in which I can substitute my own decision for that of the tribunal. The facts are not in dispute in any significant way. The claimant and his wife had acquired the property, a flat in Bournemouth, in 2001 with the aid of a mortgage. They lived there, but by 2007 they were having financial problems. They could not afford to pay council tax. They had two daughters. One was a student and the other owned two properties about (as it would appear from a Google Maps search) 2.4 and 3.6 miles from their own property. Between some point in 2007 (the tribunal found that it was December 2007) and 22 December 2010 they were living in one or other of the second daughter’s properties, and only returned to live at their own property on 22 December 2010.

  1. The first daughter, the student, continued to live at that property and she claimed and obtained exemption from council tax on the basis that the property was occupied by students only. It had been the objective of the claimant in going to live elsewhere that exemption from council tax should be obtained. As Judge Poynter explained in his Direction, that exemption could only be obtained if the claimant and his wife were not resident at the property. This meant that neither could have had their only or main residence there.

  1. The exemption from council tax continued to be sought and granted until the claimant and his wife returned to the property on 22 December 2010. They would pay visits to their...

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