R (Bewry) v Norwich City Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MOSES |
| Judgment Date | 31 July 2001 |
| Neutral Citation | [2001] EWHC 657 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | NO: CO/3986/00 |
| Date | 31 July 2001 |
[2001] EWHC 657 (Admin)
IN THE HIGH COURT OF JUSTICE NO:
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Moses
NO: CO/3986/00
MR DAN SQUIRES (instructed by Leather Prior Sols, 74 The Close, Norwich, Norfolk NR1 4RD) appeared on behalf of the Claimant
MR JAMES EADIE (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant.
MR JONATHAN MANNING (instructed by Norwich City Council, City Clerk's Office, City Hall, Norwich NR2 1WB)
1. The claimant, Mr Bewry, challenges the decision of Norwich City Council's Housing Benefit Review Board, a decision dated 8th August 2000. The Board decided that the claimant had failed to establish that he was liable for rent in respect of his occupation of 11 St Martins Road, Norwich. The Board was chaired by Mr Round. He and the other two members of the Board were Norwich City councillors.
2. The claimant seeks to impugn the decision of the Board on two main grounds. Firstly, that the Board lacked the appearance of an independent and impartial tribunal and, thus, contravened his constitutional right to a fair trial. The source of that right was expressed in two ways. It was asserted to be a right under common law and, alternatively, a right protected by Article 6 of the European Convention on Human Rights. It was contended that the Human Rights Act 1998 had effect in circumstances where this court was required to give a ruling after 2nd October 2000. Secondly, it was submitted that the presence of Mr Round as Chairman of the Board gave rise to a real possibility of bias.
STATUTORY SCHEME
3. The entitlement to housing benefit is contained in section 130(1)(a) of the Social Security Contributions and Benefits Act 1992, which provides:
“A person is entitled to housing benefit if-
(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home.”
4. By section 63 of the Social Security Administration Act 1992:
“Adjudication
(1) Regulations shall provide that, where a person has claimed-
(a) housing benefit…
the authority shall notify the person of its determination of the claim…
(3) Regulations shall make provision for reviews of determinations relating to housing benefit.”
5. By regulation 81 of the Housing Benefit (General) Regulations 1987:
“(1) A person (affected) who has made representations under regulation 79(2) (review of determinations) may give or send to the appropriate authority written notice (signed by him) requesting a further review of the determination within 4 weeks of the date on which the determination on those representations was sent to him.”
6. By Regulation 81(3):
“Subject to paragraph 5, the further review shall be conducted by a Review Board appointed by the appropriate authority and constituted in accordance with Schedule 7.”
7. Under Schedule 7, where a local authority is the appropriate authority, the composition of the Board is stated to be councillors of that Authority.
8. I should point out at this stage that review boards have now been replaced by appeal tribunals pursuant to the Child Support, Pensions and Social Security Act 2000 Schedule 7. The members of such tribunals are chosen from a panel constituted by the Lord Chancellor (see the Social Security Act 1988 sections 4 to 7) and will be independent of local authorities. The Housing Benefit (General) Regulations 1987, to which I have referred, have been revoked by the Housing Benefit and Council Tax Benefit (Decisions and Appeals) and Discretionary Financial Assistance (Consequential Amendments and Revocations) Regulations 2001 Schedule 2 Part 2, a new system has come into force from 2nd July 2001.
THE FACTS
9. The facts found by the Review Board are set out in a very full decision dated 8th August. The decision starts by dealing with a number of preliminary matters and then identifies the issue before the Board in which it is stated that the claimant asserted he was a lodger rather than a tenant. But the Board pointed out that that distinction was of no concern. The real issue was whether he did in fact pay rent either to the owner or to his agent. That remained very much in dispute.
10. The claimant had produced to the Board, as he had produced to the City Council, a letter dated 9th June 1999, headed: “SM Builders 65 Sherringham Avenue, London N17 9RS”, which stated:
“We write to confirm as from 10th June 1999, Mr Raymond R Bewry will be lodging at 11 Saint Martins Road, Norwich, a fully furnished shared house.
His weekly rent of £40.00 is payable from 10th June 1999, exclusive of all bills including Council Tax.”
11. The claimant sent in a claim form and the Council responded on 16th March 2000, stating that Mr Bewry was not eligible for benefit. The Council stated on 21st March 2000 that:
“The reason we are unable to pay benefit is because we have been unable to verify your landlord's agents.”
12. It then referred to section 48(1) of the Landlord and Tenant Act 1987, which the Review Board subsequently accepted was not directly relevant. Mr Bewry responded, pointing out that section 48(1) was not relevant and asked for the decision to reinstate his benefits in a letter dated 24th March 2000.
13. The City Council responded on 12th April 2000, saying that when the Haringay Council staff visited 65 Sherringham Avenue, the address of the purported agents, they found that it was a residential property and that SM Builders did not have offices there. The letter went on to say:
“We have, therefore, been unable to make contact with them.
We have received a number of letters from S M Builders, but have found that the signatures differ on the letters. The fact that there is no consistency in these letters and signatures and that we have had no direct contact with your landlord means that we are unable to pay Housing Benefit on your claim at 11 St Martins Road, Norwich.”
14. There was a further letter dated 9th May 2000 making the same point.
15. The Review Board considered those letters and the documents and pointed out under the heading: “The Parties' Cases” that the claimant had stated:
“…orally before us that the document on page 6 of your bundle [which is the letter to which I have already referred, dated 9th June 1999] is the proof of that liability.”
16. The Review Board pointed out that the letter was neither legible or attributable to any individual, but is stated to be for SM Builders.
17. It was argued on behalf of the Benefits Authority, the City Council, that insufficient information had been given to establish a liability. The Board then went on to give very full reasons based upon the documentation. It found the documentation to be unreliable and the arrangement between the claimant, the owner of the property, and those who appeared to act as his agents, to be, as the Review Board described, “highly unusual”. The identity of the registered proprietor was uncertain. There were inconsistencies, not only as to the spelling of his forename but as to his date of birth. The letters from SM Builders were, so it was stated, “unreliable”. There were discrepancies as to the proprietor and the letter heading.
18. The decision letter goes on by considering the highly unusual involvement of the claimant with the property.
“The registered proprietor of the property is shown as Silvan (yet another spelling of the forename) Letchumanan with effect from 6th December 1990. We have seen considerable documentation from that time onwards, all of which closely involves you. We find that you have the majority of dealings with the Yorkshire Building Society to whom the property is mortgaged. On 21st August 1990 you confirmed to the Building Society that Mr Letchumanan was employed by you, thus confirming his eligibility for a mortgage. You confirmed in cross-examination that he did indeed work for you at that time.”
19. Later, the Review Board also recorded:
“…you have requested that your housing benefit is paid not to those whom you claim to be the Managing Agents but direct to the Yorkshire Building Society mortgage account.”
20. The Board concluded:
“The Board is bound to take into account the absence of any conventional letting documentation. It is bound to take into account, secondly, the considerable inconsistencies and doubts which arise from the documentation involving the registered proprietor and his agents. It is also bound to take into account, thirdly, the highly unusual background in terms of your involvement with the property and the registered proprietor before the date on which you claim your liability to make payments for which benefit is available arose.
Against this background, we consider that you have entirely failed to explain the questions which arise in our minds. On 21st March 2000 you were asked to assist by getting the agent to come into City Hall or to give the Authority his name/telephone number but you refused. Nothing which you have presented to the Review Board has clarified the situation. Indeed, we agree with the Benefits Authority that the information subsequently provided, on the contrary, makes the situation less clear.
In all the circumstances, we therefore conclude that the letter of 9th June 1999 cannot be relied upon as establishing a liability on your part for which housing benefit would be payable; and, indeed, that the documentation as a whole relating to your liability is unreliable. For this reason we confirm the determination of the Benefits Authority that no liability on your part to make payments for which...
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