Commissioner’s file: CH 2659 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I dismiss the appeal. For the reasons below, the decision of the tribunal is not wrong in law.  

2	The claimant and appellant is appealing with my permission against the decision of the Coventry appeal tribunal on 3 April 2002 under reference U 04 032 2002 00094.

3	 I held an oral hearing of the appeal on 24 October 2002. The claimant was represented by Mr M Hemingway, solicitor to Coventry Law Centre. The respondent, Coventry City Council (the Council), was represented by Mr L Bennett of counsel, instructed by the Solicitor to the Council. I am grateful to both parties for their timely skeleton arguments and for their clear presentations at the hearing. A member of the Council on Tribunals observed the hearing.

Background to the appeal

4	The facts are not in dispute. The claimant has long been a tenant at her present home. She was previously working, but retired on 2 February 2001. She claimed housing benefit and council tax benefit on 15 May 2001, and she was awarded both from 21 may 2001. But on her claim form she added, “Can you please back dated MY CLAIM. I just only found out that I can claim.” On 18 June 2001 the Council wrote to the claimant refusing the backdating. The reason given is that under regulation 72(15) of the Housing Benefit (General) Regulations 1987 “it is considered that you have failed to prove “good cause” for your late application.” The letter invited a request for a review. This was requested, but the review confirmed the decision not to backdate.  The claimant appealed to the appeal tribunal.

The tribunal decision 

5	The appeal tribunal held an oral hearing. The claimant was present and represented. The Council was also represented. There is a record of proceedings, and a full statement of reasons was provided on request shortly afterwards. The tribunal dismissed the appeal. The statement of reasons shows that the tribunal accepted that the claimant did not realise that she could claim until May 2001. But it also made findings about two previous claims for housing benefit in about 1979 or 1980 and in the mid 1990s. Based on this claims experience the tribunal considered that if the claimant believed that she could not claim housing benefit on this occasion then that belief was not reasonably held. Nor did it accept that her mother’s illness was a reasonable excuse for delay. 

6	The main point at issue with regard to the previous claims was that when the claimant retired in February 2001 she received a redundancy payment of a little over £3000. She had been refused housing benefit in 1980 when she had previously claimed benefit on losing her job through redundancy. On that occasion the refusal was because she had received a redundancy payment of £2000 to £3000. She thought this would also stop her claim when she retired. The tribunal decided:

“I do not accept that the Appellant would not have been aware that £2000 to £3000 in 1979 or 1980 would not be worth considerably more due to inflation in 2001 when she received the latest redundancy payment.” 

7	The other ground given by the claimant was that she had been distracted at the time because her mother had been ill and then died. On this the tribunal decided:

“I am not persuaded by any evidence that I have heard that the deteriorating health of her elderly mother in Jamaica amounted to a sufficient reason for her not to be able to make enquiries into claiming earlier than she did.”
  	 
Grounds of appeal

8	The claimant’s representative put forward several grounds of appeal. I did not accept some because they were matters that, even if wrong, would not be such as to make the decision of the tribunal wrong in law and/or were issues of fact. But I allowed permission to appeal on two of the grounds. The first was that the tribunal had not given an adequate explanation of its decision. The second was that the tribunal had taken no account of the case law on the meaning of “good cause” in its decision. Both these issues were argued at the oral hearing and I deal with them in turn, starting with the more general issue of the meaning and application of the concept of “good cause”.

Good cause

9	The general rule for claims for all social security benefits is that benefit can only be awarded for a particular date if claimed within the time limit for that date. There was an important general exception to that rule. A late claim was allowed if the claimant could show “continuous good cause” throughout the period from the date for which the benefit was claimed to the date on which it was claimed. That exception no longer applies to most forms of benefit. But it continues to apply to housing benefit by reason of regulation 72(15) of the Housing Benefit (General) Regulations 1987. It also applies to council tax benefit under regulation 62(16) of the Council Tax Benefit (General) Regulations. The wording of the two regulations is the same. Although this case concerns both benefits, it is simpler if I refer only to housing benefit as the law applies in the same way to both benefits. 

10	Because of the past importance of the “good cause rule”, Commissioners have made many decisions about its application. Those decisions go back to the days when Commissioners decided all cases on the facts, as well as more recent cases concerned only with issues of law. As a result the Reports of Commissioners Decisions and other works have extensive references to various decisions of Commissioners on “good cause”. They range from decisions of Tribunals of Commissioners that are binding on me to older unreported decisions made on the facts. Coventry Law Centre referred in its submissions both to the appeal tribunal and to me to a number of those decisions. But the tribunal did not mention any of them. The Law Centre appealed on behalf of its client because it considered that the tribunal had ignored the citations made to it, and was therefore wrong in law. Mr Hemingway argued from authorities as to the approach the tribunal should have taken. He supported his approach by reference to a recent decision of a Commissioner in CH 5221 2001 that the case law of Commissioners on the good cause rule for social security purposes applied to housing benefit and council tax benefit cases. 

11	In reply, Mr Bennett, on behalf of the Council, drew attention to the Court of Appeal decision in Chief Adjudication Officer v Upton, unreported, 10 March 1997. That concerned the meaning and extent of the old “good cause rule” for social security benefits. But the decision of the Court of Appeal also clearly applies to the same rule for housing benefit and council tax benefit purposes. Mr Bennett also drew attention to the comment on this case in the leading work on the law of housing benefit, CPAG’s Housing Benefit and Council Tax Benefit Legislation (2000-2001 edition, p 360, commentary by Findlay, Poynter, Stagg and Ward). The commentators state:

		The phrase “good cause” has often been considered by Social Security 	Commissioners and in R(S) 2/63 (T) was defined by a Tribunal of 	Commissioners as:
	“... some fact which, having regard to all the circumstances (including  the claimant’s health and the information which he had received and that which he might have obtained) would probably have caused a reasonable person of his age and experience to act (or fail to act) as the claimant did.”  

However, it is clear from the recent decision of the Court of Appeal in ...Upton ... that, as long as the authority or Review Board have regard to this legal test, the question whether “good cause” exists is one of fact...
		
In the light of the Upton case, the guidance [given by the Department to 	Councils], which closely follows the case law established by decisions of 	Commissioners, must be seen as illustrative only.”

Mr Bennett adopted that in his argument. Save for R(S) 2/63 and similar decisions, the authorities cited by the Law Centre were illustrations of the test. The tribunal had, he submitted, understood the law correctly. Its application was a question of fact and could not be subject to appeal.

The Upton case

12  	Beldam LJ gave the decision in Upton, Roch LJ and Sir John Balcombe agreeing. The question was whether the Social Security Commissioner had been right to dismiss the claimant’s appeal from a decision on an appeal tribunal rejecting a late claim for benefit. The reasons given by the claimant were, first, that he did not know of the benefit he later claimed and, later, impaired health. The tribunal directed itself along the lines of the passage in R(S) 2/63 set out above. In applying the rule, it noted that for over 20 years the claimant had not sought advice and had been “purely passive”. For that reason, the tribunal rejected the appeal.  After the tribunal (and not at it) it became clear that, without the claimant’s representatives being aware of it, the claimant could neither read nor write. The Commissioner, on appeal, rejected the contention that the tribunal had erred in law in its approach. The Commissioner noted that the claimant had managed to make previous claims to benefit despite his illiteracy, and added that the illiteracy made it reasonable to expect a claimant to seek advice.  

13	Beldam LJ referred to the test of “good cause” as “reasonable grounds within the statute”. Having heard argument from Miss Findlay (counsel for the claimant) about authorities in other areas of the law, he stated:

“... I do not think we are compelled [by those authorities] to depart from the course which, as I understand it, the Court adopts which is, having found the primary fact, to direct itself as to the appropriate standard in law, and if then it assesses the primary facts to be reasonable within that standard, to treat that holding as a question of fact. Accordingly, I do not think that the submission made by Miss Findlay that this is a question of law is correct.” 

14	Beldam LJ then dealt with the new element of illiteracy, commenting:

“A person who can neither read nor write, behaving as a reasonable person of his age and experience, would, it seems to me, ask someone to read to him or explain the documents in which such an important decision was being conveyed to him. It seem to me more than likely in his case that the appellant, who had the advantage of a wife who helped him in completing the forms, as we understand she did, would probably have asked her, and if she was unable to explain it to him, no doubt, he would seek further advice from the officers of the Department who attended him so regularly.”

I quote that additional passage because it shows a clear adoption of the test in R(S) 2/63 and its application to a particular aspect of the case.  On behalf of the Court, Beldam LJ then dismissed as “unfounded” the criticism of the tribunal and Commissioner for referring to the claimant as “purely passive” because he failed to make any active enquiries over a long period to see whether he might have a claim.

Applying the good cause test

15	Upton makes it clear that the meaning of “good cause” is a matter of law but its application to the primary facts is itself a matter of fact. Upton also adopts the test set out in R(S) 2/63 (and before that CF 371/49). It is a test that, as Beldam LJ commented, has stood the test of time. It is an application in this context of the general legal test of what is reasonable in all the circumstances. The effect of Upton is therefore to confirm the test set out in R(S) 2/63 as binding as to the meaning of the test of good cause on all those applying the test for the purposes of social security benefits, while also confirming that its application to the facts is itself a matter of fact, appealable to an appeal tribunal but not to a Commissioner. 

16	According, the questions for me in this case are: did the tribunal understand the legal test of “good cause” correctly? If it did, did it go wrong in law in applying that to the facts of the case before it? For example, did it ignore any of the evidence or fail to consider all the evidence properly? Did it hear the case fairly? Was its decision adequate?

17	In this case the tribunal had had its attention drawn to several decisions of Commissioners in addition to R(S) 2/63. That had, in my view rightly, been quoted in the submission from Coventry City Council. It is the starting point in all good cause cases. The Council had then cited: CS 174 1987, CS 15/79. The Law Centre had then cited R (SB) 6/83, R(S) 3/79, and the two cases already cited. I add for the record that in the submissions to me the following authorities were also noted: R(U) 2/92, R(S) 8/81, R(S) 3/63.  

18	Did the tribunal err in law in not referring to any authorities in its statement? There is no general rule about that. The key point is whether the tribunal had the right test in mind. In this case, both sides had referred the tribunal to that test in the written submissions. Further, it is clear from the record of proceedings that the attention of the tribunal was also drawn to the other authorities in argument. It is fair to assume from the record as a whole that the tribunal therefore had them in mind. The question, then, is whether the tribunal, in applying that test to the facts, has shown adequately that it  actually applied the right test.

Was the decision of the tribunal adequate?

19	The second argument for the claimant was that the tribunal had not set out its reasons adequately. Mr Bennett, for the Council, agreed that its decision was not perhaps best practice, but it nonetheless was adequate. Mr Hemingway strongly argued that it was not adequate because it failed to deal properly with the reasons why the claimant’s explanation of the delay was not accepted. 

20	Adequacy has to be measured against the legitimate expectation of a losing party that a tribunal should explain its decision sufficiently to establish that it did apply the right legal test to a proper review of all relevant evidence. In other words, it must make clear that it did not make any appealable errors. There are two elements to this argument here. First, there is the question of adequate reference to the arguments presented by the parties, including reliance on Commissioners’ decisions. The second is adequacy as to consideration of the claimant’s explanation of lateness.    

21	The tribunal’s statement shows that it had both the two reasons put forward for the claimant as reasonable grounds for delay in mind.  But I hesitated over whether this tribunal did deal with the matter adequately. Its conclusions are undoubtedly brief. And it cannot be said that the tribunal reached the only conclusion that a tribunal could have reached on these facts. Did it show that it had not strayed outside the area of discretion allowed to it in deciding what was reasonable? 

22	The tribunal expressly applied the test of reasonableness to the previous claims history of the claimant and reached a conclusion that it was entitled to reach. It overstated the position when it said, seemingly as a general proposition of law, that “the onus is on a claimant to make enquiries as to whether there is an entitlement to a particular benefit and this she failed to do.” The test is, again, what is reasonable in those particular circumstances. It cannot be said that it is always reasonable for all claimants to enquire about all benefits. Nonetheless, the tribunal, having made that statement, does not appear to have applied it, so the overstatement is not fatal to its decision. This is not, as Upton was, a case of a claimant who knew nothing about a benefit. The claimant knew about housing benefit, and she knew about the capital rule. The tribunal found that as fact. It then found that she had made assumptions about the capital rule without further enquiry, while it judged that a reasonable person with her experience would have made enquiries. So she did not act reasonably in not enquiring. Indeed, the claimant herself made those enquiries a few months later. While the tribunal could have explained its decision more clearly, I do not find it in error of law.

23	Did it err with regard to the claimant’s mother’s illness? The implicit question here is again what a reasonable person would do in the circumstances of the claimant. These were that her mother was ill, and later died, in another country. Did that stop a reasonable person of her age, experience and state of health from enquiring about housing benefit on retiring from work, that retirement being unrelated to the mother’s illness? The statement does not of itself explain the decision taken on this point. But the tribunal’s comment that “I am not persuaded by any evidence I have heard” refers us to the record of proceedings. The record of proceedings is a full one and shows that the chairman questioned the claimant on precisely this point, and also heard the submissions of the representative on it. It is clear from the record of proceedings that the tribunal was informed that there was more to the circumstances than that her mother was ill and then died in another country. There were family and health pressures on the claimant herself because of her mother’s illness. The tribunal was made aware of the wider context, and did consider it. Again, it would have been better if the tribunal had made clearer findings of fact about the wider circumstances. But I do not consider that the tribunal dealt with the matter inadequately when reading the statement of reasons and the record of proceedings together. I therefore reject that ground of appeal as well.  My conclusion is that the decision of the tribunal is adequate, though barely more than that.

24	I was asked by counsel to give some general guidance on the application of the good cause test. I have set out my reasoning fully with that in mind. I add this. While I do not find this tribunal to have erred, it is in part because of the full arguments put to it in clear documentary submissions by, if I may say so, competent representatives for both parties, and in part because of the full way in which the case was discussed at the oral hearing and that discussion was recorded, by the chairman. I commended the parties for their written documents at the oral hearing. I have to say that in other cases the documentation falls some way below those standards. In those other cases it may be necessary, and it will always be best practice, for a tribunal to remind itself and the parties of the key test from R(S) 2/63 and to show, if asked to give its reasons, how it has applied it. The tribunal chairman in the Upton case did that and it clearly influenced the approach of both the Commissioner and the Court of Appeal to the tribunal decision.  The same approach would be the best starting point for any authority making a decision on good cause.  Beyond that, the comment of the Commissioner in CH 5221 2002 must be read subject to the guidance of the Court of Appeal in Upton. I agree with the comment on the law after Upton in the CPAG guide. There is one final point. The full test is “continuous” good cause”. Nothing turned in this case on the issue of continuity so I have not considered it.

								David Williams
								Commissioner

								09 December 2002
[Signed on the original on the date shown]