Commissioner’s file: CH 3594 2002
DECISION OF THE SOCIAL SECURITY COMMISSIONER 

1	I allow the appeal.

2	The claimant and appellant is appealing, with my permission, against the decision of the Stratford appeal tribunal on 22 March 2002 under reference U 42 249 2001 01699.

3	I set aside the decision of the tribunal. It is expedient that I take the decision that the tribunal should have taken. This is:

Appeal allowed. The decision of the Council on 10 July 2001 refusing a claim to the award of backdated housing benefit and council tax benefit from 18. 2. 2001 to 16. 10. 2000 is set aside. The matter is referred back to the Council for further consideration of that claim and the underlying decisions.

4	I held an oral hearing of this appeal on 18 December 2002 at Harp House, London. The claimant was represented by Mr John Beckley of Tower Hamlets Law Centre. The London Borough of Tower Hamlets Council was represented by Mr L Fearon of the Council. I am grateful both for their help.

Background to the appeal

5	 The claimant started work in October 2000. She had previously been receiving income support, housing benefit and council tax benefit.  Her income support entitlement ended because she started work, and so therefore did her then entitlement to both housing benefit and council tax benefit.  In February 2001 she applied again for housing benefit and council tax benefit, giving details of her work, and asking that the claim be backdated to a date immediately after her previous claim stopped.  Her evidence was that she had made a claim before this, but the council had lost it and she had had to make a further claim. She was awarded benefit on that claim, but it was not backdated. 

6	The Council’s decision was that the claimant had not shown continuous good cause for her late claim. It stated that she had been sent several letters after her benefit had stopped, but she made no contact with the Council until her late claim was made. 

The tribunal decision 

7	The tribunal confirmed the decision of the Council.  Put simply, the tribunal accepted the evidence and assertions of the Council that the Council had sent the claimant various letters and that it had no record that she had sent the council any or that she had contacted the Council in any other way until February 2001, while it rejected the evidence of the claimant that she had not received various communications and that she had sent a letter to the Council. 

Grounds of appeal 

8	The first ground of appeal was that the claimant had not been given the submission of the Council until the hearing itself. She had not had time to study it when the appeal was called. Linked with this, the claimant submitted that the Council had not produced evidence to back its assertions about what letters were and were not sent, and that the tribunal had accepted assertions from the Council while rejecting evidence from the claimant on the same matter.  The Council had not applied the proper approach to deciding if there was continuous good cause for the late claim.

Was the hearing fair?

9	On behalf of the claimant, Mr Beckley explained that his client had received no written submission ahead of the tribunal hearing. She told the clerk this. The clerk provided her with a copy of the submission and told her that the chairman would be told and that she would have time to read the papers. She agreed that the matter should proceed. But she was summoned into the tribunal hearing before she had had more than a few minutes to look at the papers (about 50 pages).  Her case was the first one of the morning. 

10	I am surprised to note that the decision notice, the record of proceedings of the hearing and the statement of reasons for the decision are all silent about the problem with the submission. The claimant was told that the clerk would have a word with the chairman about the missing submission, and I therefore assume that the chairman knew of the failure to give the claimant proper notice. She was not represented.  The chairman should have checked that the claimant was in a position to allow the case go ahead without longer time to study the papers, and should have recorded that fact.  

11	Unlike the procedures of many courts and tribunals, the customary timings and procedures of oral hearings by appeal tribunals are based on the assumption that all parties have received a common bundle of papers containing the submissions and the written evidence in good time ahead of the tribunal hearing, and that the tribunal members and all parties have read and considered those papers. On that basis, there is a danger that giving one party only a short period to study the papers than the other party makes the hearing unfair, although it is an unfairness that the party can waive. 

12	Notice of an oral hearing in a housing benefit or council tax benefit case is provided for in regulation 49 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, as applied by regulation 23 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001. This provides for a minimum period of 14 clear days’ notice of the hearing. To ensure a fair hearing under the usual procedures of appeal tribunals that must also apply to the documents that will be assumed to have been read when the oral hearing takes place. It therefore covers the submissions and evidence as well as the notice of time and date. That is so unless the appeal tribunal is prepared to take the time during the oral hearing itself to redress the unfairness by ensuring that all the evidence and submissions are presented orally by both parties.  

13	On that basis, this hearing could only proceed fairly if the claimant had time to read the documents and also genuinely consented to a hearing without adequate notice, or if the tribunal adopted what I might term the long procedure.  The claimant was not represented, and there is no record of proper consent or of the tribunal taking the time to go through all the papers as an alternative approach. I accept the evidence that the claimant did not have time to read the papers properly before the tribunal hearing started. The tribunal hearing was therefore unfair in accordance with the principle of equality of arms under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Council had the duty to send the submissions to the claimant. For whatever reason, they did not arrive, and the claimant was therefore put at a disadvantage before the tribunal. In proceeding with the hearing as it did, the tribunal treated the Council more favourably than the claimant.  I therefore set aside the decision of the tribunal.

Was the original decision of the Council right?

14	As I decide the appeal on that basis, I do not have to deal with the substance of the case. Nor was I in a position to redecide the case on the facts in any event. Nonetheless, both parties addressed the other grounds of appeal at the oral hearing. 

15	During the hearing Mr Fearon, on behalf of the Council, conceded that there appeared to be a mistake in the original underlying decision that the tribunal had not considered. The decision underlying the decision under appeal was presented as an overpayment for the period from 16. 10. 2000 to 18. 2. 2001.  Mr Fearon pointed out that this was not one but two decisions: one (based on document 2) to 19.11.2000, and the other for the later period. Further, Mr Fearon accepted that there were issues about the first of those underlying decisions that called it into question. The decision had been based on withdrawal of income support, but no consideration appeared to have been given to regulation 104 of the Housing Benefit (General) Regulations 1987. There might also be issues related to the claimant’s claim for other benefits. Mr Beckley rightly accepted that concession on behalf of his client. 

16	On that basis, letters sent or said to have been sent by the Council to the claimant may have been wrong and any conclusion related to “good cause” based on those letters would need reconsidering. Separately, it may be that an adjustment should be made to the underlying decision or decisions, affecting the need for or extent of any back claim.

17	On that basis, the decision of the Council (on document 23) about the backdating must be called into question. In my view, the most expedient way of dealing with the resulting problems is to set aside the decision of the Council that is under appeal and refer the matter back to the Council. No doubt, as Mr Fearon indicated, the Council will then consider the whole position and make the necessary decision or decisions. Of course, if the claimant and representative do not agree with those decisions, they will have new rights of appeal, and that might have to go to an appeal tribunal. But I cannot decide the outstanding issues on the basis of the oral hearing before me, so the matter has to go to a new tribunal in any event. It is better that this happen on a new set of decisions rather than on the present decisions.  I therefore set aside the decision of the Council and refer the matter back to it. 

									David Williams
									Commissioner

									21 January 2003

[Signed on the original on the date shown]