CH 1855 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER 

I allow the appeal.

The appellant, Westminster City Council (the Council), is appealing with my permission against the decision of the London appeal tribunal on 27 November 2002 under reference U 45 256 2002 01629. 

For the reasons below, the decision of the tribunal is wrong in law. I set it aside. The appeal is to be reheard.

DIRECTIONS FOR REHEARING

A	The appeal is referred to a new appeal tribunal for a full rehearing in accordance with the directions given in this decision: Child Support, Pensions and Social Security Act 2000, Schedule 7, paragraph 8 (5) and (6).  

B	The rehearing is to be by a tribunal not including any member of the previous tribunals involved in this case (including the chairman that held the set aside hearing).

C	The tribunal will conduct an oral hearing.

D	The tribunal is to consider in the light of this decision and any new evidence produced to it if, on the balance of probabilities, the respondent made, on or before 2 November 2001, representations in writing, signed by him, to the Council for a review under regulation 79(2) of the Housing Benefit (General) Regulations of the housing benefit review board decision of 21 September 2000. If it is satisfied there were such representations, then it is to identify the document in which those representations were made or, if there is no such document or copy available, it is to find what those representations were and is to direct that the Council conduct a review with regard to those representations unless it has already done so. If it is not so satisfied, it is to dismiss the appeal.

E	The respondent and representative must, within one month of issue of this decision, send to the appeal tribunal copies of any documents it wishes to produce to the appeal tribunal at its hearing.

F	The appellant Council is to make any further submission it wishes to make, and to produce any further document it wishes to produce, for the new hearing to the appeal tribunal within one month of issue of this decision. 

G	These directions are subject to any subsequent direction by a district chairman.

CH 1855 2003

REASONS FOR THIS DECISION 

1 	I held an oral hearing of this appeal at Harp House, London on 6 November 2003 at the request of the respondent, Mr B. The Council was represented by Mr G Few. Mr B was represented by Mr A Easter of Hatton Financial Services.

2	This is a long running dispute between the Council and Mr B. There is a most helpful chronology in the statement of reasons prepared by the appeal tribunal after 6 November 2002. The starting point of the current disagreement is with a decision of a housing review board on 21 September 2000. The board decided that Mr B was not entitled to housing benefit in respect of a house in which he had lived but had left in July 2000. The board considered that the arrangements under which Mr B had lived there was a tenancy contrived to take advantage of the housing benefit scheme. 

3	Mr B asked the Council to set aside the board decision. Because that request had not been decided when the housing review boards were abolished in 2001, this went to an appeal tribunal chairman, who refused to set aside the decision on 27 November 2001. It did so after a formal hearing at which Mr B was present and represented. Mr B then asked the Council to review the decision of the board. It was pointed out to him that this was no longer possible in law, and he then asked the Council to supersede the board decision under the new law.  The Council decided that it did not have the legal power to take any decision that could assist Mr B. The power to review under the old law had been revoked on 2 July 2001. A revision of the review board decision was not possible because more than 13 months had passed since the board decision. Any supersession of the decision could not assist Mr B because it could only take effect from the date of the request at the earliest, and that could not therefore directly affect the position with regard to the tenancy that ended in July 2000.

4	Mr B appealed that decision to the appeal tribunal.  That was heard on 27 November 2002. The tribunal chairman took the sensible step of agreeing procedure with the parties at the outset of the hearing. It was agreed that the tribunal would look to see whether there was a decision over which it had jurisdiction. If it did, it would then have to look at the substance of the underlying decision. 

5	The tribunal came to a different conclusion to either of these. After considering the papers and hearing from both parties, the tribunal found that it was “prepared to accept that Mr B did make an application for a review which had not been determined prior to 2 July 2001”. On that basis, the tribunal decided that the refusal of the Council to deal fully with the application by Mr B to review the board decision was wrong. The tribunal therefore sent the case back to the Council either to revise or supersede the board decision or to decide not to do so. Directions were given for the matter to come back to a tribunal if this did not satisfy the two parties.

6	The Council, instead, exercised its right to seek permission to appeal to the Commissioner. This seems to have caused further complications. As far as the appeal tribunal was concerned, there were directions given in November 2002 that the matter should come back to a tribunal if nothing happened. But the Council was only told in full about the refusal of permission to appeal by the chairman on 28 February  2003. Meanwhile the case had been listed to be heard by a tribunal on 3 March 2003. The chairman of that tribunal adjourned the case, but he used the opportunity to obtain relevant papers from the parties.  So the matter comes before me with the benefit of those papers, and with the appeal tribunal hearing standing adjourned.

7	I remind myself first that my task is limited to deciding if the tribunal decision was wrong in law on the evidence before it. Only if I find it to have gone wrong in law can I consider the new evidence. I cannot therefore look at the new documents, or take into account the statements made by the parties at the oral hearing, to redecide the factual issue before the tribunal unless it erred in law. 

8	The former power to conduct a review of a board determination was in regulation 79 of the Housing Benefit (General) Regulations. Regulation 79(1) allows a local authority to conduct a review at any time if there has been a change of circumstances, or if fresh evidence shows that there was ignorance of or a mistake about, a material fact, or if the board went wrong in law.  Regulation 79(3) provided that the review took effect in place of the original determination if it was because of fresh evidence or an error of law, but otherwise took effect when the change of circumstances occurred. Regulation 79(2) provided a separate, time-limited power of review as follows:

Notwithstanding paragraph (1), … if a person affected makes written representations signed by him to an authority within six weeks of the date of notification to him of the determination, the authority shall review the determination in the light of those representations within 14 days of receiving the representations or as soon as reasonably practicable thereafter. 

The regulation then sets out rules for calculating the six weeks and other matters that arise if there has been a request under paragraph (2).

9	Mr Few’s submission was based on the requirement in paragraph (2) that there had to be written and signed representations before the duty on the Council arose under paragraph (2). Those requirements are not to be found in paragraph (1). 
Further, the transitional provisions do not apply to regulation 79(1), so it is only if the requirements that there are written and signed representations that the matter can go to an appellant tribunal. The law making provision for this is regulation 2 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) (Transition and Savings) Regulations 2001.

10	Mr Few submitted that either the tribunal had erred in not checking that the requirement of regulation 79(2) that Mr B’s representations were in writing and signed had been met or, alternatively, in failing to make adequate findings on the matter so not dealing with the matter properly. Mr Few also pointed out that the original decision in this case was on 9 February 2000, and that a review was sought of that decision. It was turned down on 29 February 2000. This led to a request for further review, and that itself led to the board decision in September 2000. Any further review of the original decision would be a second review, and only one review is allowed. The tribunal decision could not be supported on any of those grounds. 

11	Mr Easter, on behalf of Mr B, relied on the decision and findings of the tribunal. It had looked at the matter fully, and its decision was adequate. It had not erred in law and the Council should conduct the required review under, of course, the new law. 

12	I conclude that Mr Few’s central submission is right. The tribunal’s decision is inadequate. I do so because of the duty imposed on a local authority under regulation 79(2). Its duty is to “review the determination in the light of those representations.”  The tribunal has not indicated what “those representations” are, if there were any. This part of the structure of appeals and reviews of housing benefit decisions has now been entirely replaced by other rules, so I do not dwell on them. For present purposes, the focus is regulation 79 as this was the provision that allowed a review of a decision of a housing benefit review board. 
The continuing power to review arises only under regulation 79(2). But the existence of a review under regulation 79(2) depends essentially on someone having stated in signed writing what the review was about. Unless the representations are identified, there is no specific basis for the review. 

13	In this case, unless the Council knows what representations were made by Mr B in writing, and signed by him, within the six week limit, it cannot conduct the review of the board decision. A conversation either in the office or over the telephone is not enough. Nor is it enough for Mr B to state after the event why he wanted the review. It has to be shown that Mr B made representations to the Council in the proper manner.  The tribunal made no specific finding of fact that Mr B did make written, signed representations, and no document identifying those representations has been identified.  Even assuming that there was such a document, and it was lost, it is still necessary to establish the grounds before the Council proceeds with its review. The tribunal did not do that either. So its decision does not provide a sufficient legal or factual basis on which the Council can proceed, and is therefore inadequate. 

14	That being so, can I find that there were or were not any written representations? The tribunal commented in its reasons: “From the bundle before me I note that following the decision signed on 21/9/2000 that the next document was dated 20/12/2000 referring to an appeal and then the setting aside decision on 27/11/2001.” The tribunal then went on to accept Mr B’s oral evidence that he (Mr B) had been in touch with Mr Few. The tribunal relied on that oral evidence that there was “an application”. That I read as necessarily involving a finding of fact that the tribunal had no document before it which could constitute written, signed representations made within 6 weeks of the decision, as that was the decision of 21/9/2000.  Nor is there an express finding that there was such a document. 

15	I have read the full bundle of papers now in front of me, including the papers not in front of the appeal tribunal in November 2002. I have considered whether anything in the papers could constitute written signed representations made within 6 weeks of 21 September 2000 (that is, up to and including 2 November 2000), or evidence of such a document.  The papers contain a letter dated 26 September 2000 from the clerk to the review board to Mr B, enclosing a draft version of the note of material facts and reasons for decision. That would be the trigger for any request.
The draft is a very lengthy and detailed document. It was sent recorded delivery and would I assume have been received shortly after that date. 

16	The next letter is the letter of 20 December 2000 to Mr Few from solicitors to Mr B stating that “we write to advise you that we have recently been instructed by … Mr B”. It takes the form of an application under regulation 86 of the Housing Benefit (General) Regulations for a review. There is no mention of regulation 79. It is that letter which formed the basis of the application that went before an appeal tribunal chairman on 27 November 2001.  The tribunal chairman proceeded to consider that review at a hearing at which Mr B was present and represented without any other document being mentioned. Regulation 86 allowed a set-aside on grounds familiar to tribunals and which can be summarised as involving faulty procedure such that the interests of justice require the decision to be set aside and taken again. It does not therefore involve any representations about a review, or overlap with regulation 79.

17	A request for a regulation 79 review was made on 11 March 2002, referring specifically to regulation 79(1)(b) and not regulation 79(2). Indeed, regulation 79(2) is not mentioned. It was said to be based on counsel’s advice. The reply on 15 March 2002 rightly pointed out that a review under regulation 79(1) was no longer possible.  Those letters, and the letters that followed, take the current question no further, save that again there is nothing in them to indicate a properly made regulation 79(2) review request about the review board decision made on or before 2 November 2000. 

18	On 24 July 2002, in part of the protracted correspondence, Mr B told the appeals service that he was aware that regulation 79 had been revoked in July 2001 but that “my application for review was submitted back in December 2000”. That statement suggests that (a) there was no request before December 2000 and that (b) at some stage someone has become confused between a request for review under regulation 79 and a request for a set-aside under regulation 86. It was, as noted above, the latter that was made in December 2000 and not the former. The letter of 24 July 2002 then goes on to ask for a regulation 79(1) review, not a regulation 79(2) review.   

19	I see nothing further in the papers that in any way indicates that there was a regulation 79(2) application made on or before 2 November 2000 in writing, signed, and indicating the representations that Mr B wanted to be the basis of the review of the housing review board decision of September 2000.  But I do not make a finding of fact on that matter because I did not consider it with the parties. I also note that Mr B and his representative asked for extra time to produce further documents at the hearing of the tribunal in November 2002 but was not given it. It may therefore be that there is a document, or evidence of a document, that would meet the regulation 79(2) requirements, that has not yet been produced. 

20	The matter must therefore go back to the tribunal to give Mr B and his representative a final opportunity to produce a copy of, or evidence of, a request in the proper form to satisfy regulation 79(2). If they can satisfy the tribunal on new evidence that those requirements were met, then the matter should proceed without further delay. If they cannot, then these proceedings out to be brought to an end. 

								David Williams
								Commissioner

								24 November 2003
[Signed on the original on the date shown]