File number:  CH 2302 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal. 

2	The claimant is appealing, with my permission, against the decision of the Scarborough appeal tribunal on 20 March 2002 under reference U 01 010 2002 00007. 

3	For the reasons below, the decision of the tribunal is erroneous in law. It is referred to a new tribunal for a complete rehearing in the light of this decision. 

Background to the appeal

4	The claimant and his wife claimed, and were awarded, housing benefit from Scarborough Borough Council (the Council) with effect from 19 October 2000. On 10 October 2001 the award was “cancelled” from its start, and the payments of benefit stopped. This followed enquiries made by the Council after a renewal application was made by the claimant. The reason given by the Council for stopping the benefit was that the tenancy was not a commercial one but contrived between the claimant and his daughter (the landlord). The claimant appealed. 

5	The Council’s submission to the tribunal was that no commercial tenancy existed between the claimant and his daughter. Aside from the fact that the daughter bought the property on the same day as her parents moved in as tenants, the Council also relied on the following: the rent was said to be £400 a month, but the claimant and his wife were on income support. The housing benefit allowed was £64.82 a week, and there was no evidence of how the shortfall of £27.23 was made up, if it was made up. There was no rent book and no other documentation of a tenancy.

6	When the claimant received the appeal documentation, he objected to the decision of the Council on the meaning of “commercial”. He also complained about the delay in moving the case forward, restated the view that he had previously had benefit, and alleged that the withdrawal of benefit before the appeal was an offence against his human rights. He also put in a detailed written rebuttal of each of the points made by the Council. After the Council declined to revise its decision stopping benefit, it also told the claimant that it took the view that the liability to pay the rent was created to take advantage of the housing benefit system.  The papers also show that the daughter was invoiced with the overpayment, but I am not aware that she has exercised any rights of appeal. The matter went to the tribunal as a claimant’s appeal. 

7	The tribunal held an oral hearing of the appeal at which the claimant was present, and at which the Council was represented, with a witness for the Council also in attendance.  There is a lengthy record of proceedings, and a full statement of reasons was issued shortly afterwards.

Grounds of appeal 

8	The claimant put in lengthy grounds of appeal raising a number of issues about the tribunal’s decision and the conduct of the hearing. The claimant also alleged breaches of his human rights under articles 6, 7 and 1 of the European Convention on Human Rights. He added further evidence about the case, but that of course was too late for the tribunal decision. I have since received further submissions from both the Council and the claimant. I note that certain aspects of this case have been subject to the attention of the Local Government Ombudsman, but that is outside the scope of the appeal to me. 

My decision 

9	I first deal with the allegations that the claimant’s human rights were broken by the actions and appeal. The claimant has given no specific statement of any specific violation of any right other than the right to have a fair hearing under article 6 of the European Convention on Human Rights.  I can see nothing in this case to raise any other issue, and I therefore dismiss the allegations as generalised and insufficiently precise to be considered.

10	The application of article 6 of the European Convention on Human Rights raises the same points as the concept of natural justice  - that the hearing was fair to both sides, and that the tribunal was independent. I can see no substantive ground for taking this issue further either. The claimant complained about the conduct of the hearing. The Council’s presenting officer rebutted that strongly. There is a full record of proceedings and statement, both of which indicate a full discussion of the issues raised. The claimant’s final submission put the complaints in terms personal to the tribunal chairman. As I have not only a full record but the comments of both parties, I have not asked the chairman to comment on the matter. The accusations of bias and lack of independence on the part of the chairman are in my view without foundation. She has clearly considered both sides of the argument. The facts that she agreed with one side and not the other (as is her duty), and that she asked the claimant searching questions (she did the same of the Council), is not evidence of bias, and I see no other evidence.  

Cancelling awards 

11	Did the tribunal err in law in the substance of the case? The decision under appeal was a “cancellation” decision of the Council to the effect that housing benefit was not payable to the claimant in respect of the claim from October 2000. To operate from the first date of award the “cancellation” had to be a revision of the original decision.  To show that there was a proper revision of the original decision granting benefit, the Council had to satisfy the tribunal of one or more grounds of revision of the original decision.  Those grounds are set out in regulation 4 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001.  As the revision did not take place within one month of the original decision, it had to be based on the grounds in regulation 4(2), namely either official error or ignorance of, or mistake as to, some material fact.   Unless one of those grounds is shown, the decision of the Council could not be a revision decision taking effect from the original date of award. It would have to be a supersession decision made on one of the grounds in regulation 7 of those regulations and taking effect from the date set in regulation 8 of those regulations. Or it would have to be a decision on the renewal application, with effect from the date of renewal. 

12	Although the papers before the tribunal and the decision of the tribunal itself are both very thorough about the commercial tenancy question, neither deal with this issue of revision or supersession as against refusal of the renewal claim.  The Council identified why it was perhaps wrong to issue the benefit to the claimant, but not why it was entitled to “cancel” the award in October 2000 by a decision in October 2001. The key document, in my view, is document 30. This shows that the Council was aware that the landlord was the daughter of the claimant when the claim was first made. Indeed, this is stated clearly in the original application form. The application form also shows that the claimant and his wife were receiving retirement pension and income support. So the Council also knew that when making the initial award.  The claimant also indicated the move from Brighton, and the rent level of  £400. Those issues are said to be central to the factual basis for the revision, but of what was the Council ignorant or mistaken? It is difficult to see the Council sustaining its case had the landlord not been the daughter and had the claimant had funds more in proportion with the rent, but the Council was aware of both those facts when it made the initial decision. Where is the justification for a revision? Nor can I see any relevant change of circumstances. Was this not a case where the renewal claim might properly have been refused but without retrospective effect? The tribunal did not consider those issues. I think it right to record one further matter. The Council recorded its “cancellation” decision as a fraud case. The so-called fraud finding was based on facts of which the Council was fully informed. That is not fraud. 

13	 I add a general comment. I have now seen a number of cases where Councils say they are “cancelling” an award of benefit retrospectively to the first date of award. As I commented in CH 1085 2002, that is not statutory language. A decision to award can be revised or superseded. It cannot be cancelled. The use of the term “cancel” has led to a lack of clarity in dealing with this. Any revision or supersession must be under the appropriate provision of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, and must be from the appropriate date under those regulations. Councils should therefore use the proper language, and should identify why they are revising or superseding, and from what date. And they should be aware that the onus is on them to satisfy tribunals of the grounds for a revision or supersession and the date from which it operates. 

14	 For the above reason, but not for any of the reasons raised by the claimant, I allow this appeal and direct the matter to a new tribunal. That tribunal must consider if the Council has shown grounds to revise the decision under regulation 4 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, or alternatively grounds to supersede under regulation 7 from an appropriate date, or in the further alternative, grounds to refuse to renew the award from the appropriate date. 

								David Williams
								Commissioner

								05 September 2002
[Signed on the original on the date shown]