DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No: CH/5221/2001
1.	My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
1.1.	The decision of the Leicester appeal tribunal, held on 20th September 2001, is erroneous in point of law.
1.2.	I set it aside and remit the case to a differently constituted appeal tribunal.
1.3.	I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision in accordance with my directions in paragraphs 6 and 7 below.
The appeal to the Commissioner
1.	This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the local authority with my leave. The claimant has commented on the appeal.
The history of the case
2.	The issue before the tribunal was whether the claimant was entitled to council tax benefit for a period before the date of claim. This turned in part on whether the claimant had been aware that the property was exempt. The tribunal decided in favour of the claimant and the local authority appealed. 
The local authority’s grounds of appeal
3.	I was not persuaded by the local authority’s grounds of appeal. I explained why in my grant of leave. It is at page 68 of the papers. I do not need to repeat what I wrote there. However, I emphasise two points which have arisen in other cases.
3.1.	First, the local authority produced evidence on the application that was not before the tribunal. The time for producing evidence is when the case is before the tribunal. It is too late to produce it to the Commissioner. A Commissioner only has jurisdiction if a tribunal went wrong in law. It cannot go wrong in law by not taking account of evidence that is not produced to it: see the decision of the Commissioner in R(S) 1/88, paragraph 3. I have formed the impression, admittedly on the limited evidence of a small number of housing benefit and council tax benefit appeals that have come before me, that the whole of the relevant evidence in the local authority’s possession is not necessarily produced. I make no judgment of the motives of those who prepare the papers for tribunals. However, it is important that they remember that they have a duty to disclose to the tribunal everything in their possession that may be relevant to the hearing. 
3.2.	Second, the relevant legislation on good cause for extending the time for claiming is in the same terms as the pre-1997 social security legislation. There was a considerable body of authority on that law and I consider that it applies in this new area of jurisdiction for tribunals. 
Where the tribunal went wrong in law
4.	Although I rejected the local authority’s grounds of application, I nonetheless granted leave on another ground. Nothing in the observations made by the parties on the appeal has persuaded me that the tribunal did not go wrong in that respect. 
5.	The mistake that I identified was this. The tribunal decided that the claimant, as an intelligent layman, would have been entitled to interpret a notice of exemption for the property as an indication that he had no liability for council tax. The tribunal had a copy of a notice of the award of council tax benefit at page 12. However, it did not have a copy of a notice of exemption with which to compare it. It was not in a position to decide how the claimant was entitled to interpret a document that it had not seen. It went wrong in law and its decision must be set aside. At the rehearing, the local authority must provide for the claimant and for the tribunal a copy of a notice of exemption.
Another issue to investigate
6.	At the rehearing the tribunal must also investigate another issue. The claimant has written that he made a claim for council tax benefit in 1998. The local authority accept that he made a claim (see the letter at page 19), but assert that it was refused. There are no records of that claim or refusal. The tribunal must investigate whether the claim was refused. If it was not, there is still an outstanding claim which the local authority must decide. I am surprised that records are not still available from 1998. 

Signed on original	Edward Jacobs
Commissioner
26th March 2002