[2004] UKSSCSC CH 3600 2003 (09 September 2004)

DECISIONS OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

Decisions

1.	(a)	On file CH/2155/2003 (“the Hammersmith case”), the claimant’s appeal is unsuccessful.  We formally set aside the decision of the Fox Court appeal tribunal dated 19 November 2002 but substitute a decision that the claimant is not entitled to housing benefit on the claim made by him on 30 September 1999 and is not entitled to council tax benefit from 4 October 1999 to 16 April 2000.

	(b)	On file CH/3423/2003 (“the Ealing case”), we allow the claimant’s appeal.  We set aside the decision of the Fox Court appeal tribunal dated 14 January 2003 and substitute a decision that the claimant is entitled to housing benefit and council tax benefit from 15 January 2001 to 25 November 2001.

	(c)	On file CH/3511/2003 (“the Haringey case”), we allow the claimant’s appeal.  We set aside the decision of the Fox Court appeal tribunal dated 10 December 2002 and refer the case to a differently constituted appeal tribunal for determination.

	(d)	On file CH/3600/2003 (“the Sunderland case”), we dismiss the local authority’s appeal against the decision of the Sunderland appeal tribunal dated 3 July 2003.

Representation

2.	Representation of the parties was as follows:

The claimant in the Hammersmith case neither appeared nor was represented.
The claimant in the Ealing case appeared in person.
Mr Paul Stagg of Counsel (instructed by Messrs Burke Niazi) appeared for the claimant in the Haringey case.
Mr Richard Drabble QC (instructed by the Child Poverty Action Group) appeared for the claimant in the Sunderland case.
Miss Clare Roberts of Counsel (instructed by Mr Paul Barnett of the Council’s Legal Services Division) appeared for the London Borough of Hammersmith and Fulham.
Mrs June Grehan, Appeals Team Manager of the Council’s Benefits Service, appeared for the London Borough of Ealing.
Mr Ranjit Bhose of Counsel (instructed by Mr Raymond Prince of the Council’s Corporate Legal Service) appeared for the London Borough of Haringey.
Mr Ranjit Bhose of Counsel (instructed by the Council’s Corporate Services Directorate) appeared for the City of Sunderland.
Mr Jonathan Moffett of Counsel (instructed by the Solicitor to the Department of Health and the Department for Work and Pensions) appeared for the Secretary of State for Work and Pensions.

3.	We have been greatly assisted by the submissions of all of the advocates.  We wish to pay particular tribute to Mr Drabble and Mr Stagg and their instructing solicitors who represented claimants at the hearing uncertain as to whether they would be recompensed at all for doing so, because the Legal Services Commission had failed to determine applications for public funding in time.  Such failures are now not uncommon in the more complex cases which come before the Commissioners.

4.	Public funding for appeals before the Commissioners is excluded from the general assistance scheme, but application can be made to the Legal Services Commission for exceptional funding under the Lord Chancellor’s powers to authorise exceptions to the exclusions under section 6(8)(b) of the Access to Justice Act.  Such applications were made on behalf of the claimants in the Haringey and Sunderland cases, but neither was determined prior to the hearing before us to which the applications related.  

5.	As it was, the claimants were fortunate to have the assistance of Mr Drabble and Mr Stagg, and, as we have said, that assistance was invaluable to us.  However, we do express concern that they (and those instructing them) represented their clients without knowing whether they would be recompensed or not for their work.  Whilst many members of both professions give generously of their time to pro bono work, when they choose to do work they should know whether or not they will be paid for it and, if so, on what basis.  They have the right to be able to make an informed decision.  To require them to make decision that is uninformed puts them into an unfair position.  Such unfairness can only be avoided by timely decisions being made by the Legal Services Commission on applications for exceptional funding.

6.	It would have been unfortunate had none of the claimants been represented in these difficult and important cases.  As Baroness Hale recently pointed out in relation to the parallel social security system in Northern Ireland, “The general public cannot be expected to understand these complexities” (Kerr v Department for Social Development [2004 UKHL 23, [2003] 1 WLR 1372, at paragraph 56).  It would have been difficult if not impossible for the claimants adequately to represent themselves on the issues these cases raise.  The claimant in the Ealing case represented herself and attended the beginning of the hearing but, despite our efforts to engage her in the hearing process, perhaps understandably she left after the first half-day of legal argument and did not return to make any submissions.  Whilst nothing we say can or should be taken as a judgment on the merits of any application for funding, had there been no legal representative to put the claimants’ case, the resulting inequality of arms would have been a real concern.   

The Issues

7.	Each of the cases before us concerns a claim for housing benefit and, in three cases, also council tax benefit.  In each case the local authority submits that the claimant has failed to comply with a request to provide information or evidence and, in these circumstances, it is entitled to refuse to decide the claim.  The Secretary of State and the local authorities submit that no appeal lies to a tribunal against such a refusal.  The claimants submit that local authorities have no power to refuse to decide claims; or, in the alternative, that they have a right of appeal against such a refusal.  The cases therefore raise fundamental issues as to the duties and powers of local authorities and the rights of claimants.  

8.	The issues require us to consider a number of statutory provisions.  Whilst it is not our role to criticise those provisions - but rather to construe them - it is unfortunate that the relevant legislation is drafted in such a way that none of the six experienced advocates who appeared before us was able to agree with any other as to the effect of the legislation.  The confusion generated within local authorities by the relevant provisions will also be apparent when we come to deal with the facts of the four cases before us.  Whilst it is understandable that sometimes substantive welfare law is necessarily complex, it is regrettable that provisions concerning mere procedural provisions again fall to be considered by a Tribunal of Commissioners as being of special difficulty.   

The Legislation

9.	Subject to satisfying various conditions, a person is entitled to housing benefit and council tax benefit under sections 130 and 131 respectively of the Social Security Contributions and Benefits Act 1992 (“the Contributions and Benefits Act”).  It is to be noted that these benefits are not paid by way of any form of discretionary handout.  A person has an entitlement to the benefit if the conditions are satisfied.

10.	Section 123(1) of the Contributions and Benefits Act provides:

“Prescribed schemes shall provide for the following benefits (in this Act referred to as ‘income-related benefits’) 
	….
	(d)	housing benefit; and
	(e)	council tax benefit.”
	
	By section 137(1), “prescribed” means “specified in… regulations” and, by section 175(4), a power conferred by the Act to make regulations “includes power to make thereby such incidental, supplementary, consequential or transitional provision as appears to the Secretary of State to be expedient for the purposes of the regulations”.

11.	Part I of the Social Security Administration Act 1992 (“the Administration Act”) is entitled “Claims for and Payments and General Administration of Benefit”.  Section 1(1) provides, so far as material:

“Except in such cases as may be prescribed, and subject to the following provision of this section and to section 3 below, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied  
		(a)	he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this part of this Act; or
		(b)	he is treated by virtue of such regulations as making a claim for it….”
	
“Benefit” includes “any income-related benefit” (section 1(4)(b)), which includes housing benefit and council tax benefit (section 191).  An actual or deemed properly made claim is therefore a condition of entitlement in respect of both housing benefit and council tax benefit.  Section 5(1) provides, again so far as material:
	
“Regulations may provide 
		(a)	for requiring a claim for benefit to which this section applies to be made by such person, in such manner and within such time as may be prescribed;
		….

		(h)	for requiring any information or evidence needed for the determination of such a claim or of any question arising in connection with such a claim to be furnished by such person as may be prescribed in accordance with the regulations; ….”
	
Section 189(5) confers a power to make supplementary regulations in similar terms to section 175(4) of the Contributions and Benefits Act (see paragraph 10 above).

12.	Of Part II of the Administration Act (entitled “Adjudication”), only section 63 made any provision for adjudication in housing benefit and council tax benefit cases.  Part II was repealed by the Social Security Act 1998 (“the 1998 Act”), and section 63 was replaced by section 34 of the 1998 Act which, so far as material, is in identical terms to section 63 and provides:

	“(1)	Regulations shall provide that, where a person claims 
		(a)	housing benefit; or
		(b)	council tax benefit, 
	the authority to whom the claim is made shall notify the person of its determination of the claim.

	(2)	Any such notification shall be given in such form as may be prescribed….”

(3)	Regulations may make provision requiring authorities to whom claims for housing benefit or council tax benefit are made by, or in respect of, persons who have been entitled to a jobseeker’s allowance or to income support or state pension credit to give priority, in prescribed circumstances, to those claims over other claims for any such benefit.”
	
	“Authority” is not defined in the 1998 Act but must refer to the “appropriate housing authority or local authority” responsible for the administration of housing benefit by virtue of section 134 of the Administration Act and to the “appropriate authority” responsible for the administration of council tax benefit by virtue of section 139 of that Act, as those must be the authorities “to whom the claim is made”.

13.	The relevant regulations were made under the 1992 and 1998 Acts, and are found in the Housing Benefit (General) Regulations 1987 (“the HB Regulations”) and the Council Tax Benefit (General) Regulations 1992 (“the CTB Regulations”).  There are no material differences between these sets of regulations that apply to each benefit respectively, and it is therefore only necessary to set out the former.  

14.	Part X of the HB Regulations (entitled “Claims”) includes regulations 72 and 73 which provide, so far as material:

	“Time and manner in which claims are to be made

“72	(1)	Every claim shall be in writing and made on a properly completed form approved for the purpose by the relevant authority or in such written form as the relevant authority may accept as sufficient in the circumstances of any particular case or class of cases and be accompanied by or supplemented by such certificates, documents, information and evidence as are required in accordance with regulation 73(1) (evidence and information) or paragraph 5 of Schedule A1 (treatment of claims for housing benefit by refugees).
		….

		(6)	Where a claim received at the designated office has not been made in the manner prescribed in paragraph (1), that claim is for the purposes of these Regulations defective.

(7)	Where a claim is defective because
	(a)	it was made on the form approved for the purpose but that form is not accepted by the relevant authority as being in a written form sufficient in the circumstances of the case; or
	(b)	it was made in writing but not on the form approved for the purpose and the relevant authority does not accept the claim as being in a written form which is sufficient in the circumstances of the case, 
the relevant authority may, in a case to which sub-paragraph (a) applies, refer the defective claim to the claimant or, in a case to which sub-paragraph (b) applies, supply the claimant with the approved form.

		(8)	The relevant authority shall treat a defective claim as if it had been made in the first instance where the approved form referred or sent to the claimant and in accordance with paragraph (7) is received at the designated office properly completed within 4 weeks of it having been referred or sent to him, or such longer period as the relevant authority may consider reasonable.

		(9)	A claim which is made on an approved form for the time being is, for the purposes of this regulation, properly completed if completed in accordance with the instructions on the form.
		….

		(15)	Where the claimant makes a claim in respect of a past period (a “claim for backdating”) and, from a day in that period up to the date of the claim for backdating, he had continuous good cause for his failure to make a claim, his claim in respect of that period shall be treated as made on
	(a)	the first day from which he had continuous good cause; or
	(b)	the day 52 weeks before the date of the claim for backdating,
		whichever fell later.
		….

	Evidence and information

	73	(1)	Subject to paragraph (1A) and paragraph 5 of Schedule A1 (treatment of claims for housing benefit by refugees), a person who makes a claim, or a person to whom housing benefit has been awarded, shall furnish such certificates, documents, information and evidence in connection with the claim, or any question arising out of the claim or the award, as may be reasonably required by the relevant authority in order to determine that person’s entitlement to, or continuing entitlement to, housing benefit, and shall do so within 4 weeks of being required to do so or such longer period as the relevant authority may consider reasonable.
		….”

15.	In Part XI (entitled “Decisions on Questions”) regulation 76 provides:

“Who is to make a decision

	76	(1)	Unless provided otherwise by these regulations, any matter required to be determined under these regulations shall be determined in the first instance by the relevant authority.  

		(2)	An authority shall be under no duty to make a decision on a claim
	(a)	where the claim has not been made in accordance with regulation 72(1) (time and manner in which claims are to be made) or treated as so made by virtue of regulation 72(8) or paragraph 1 of Schedule A1 (treatment of claims for housing benefit by refugees);
	(b)	where the claimant has failed to satisfy the provisions of regulation 73 or paragraph 5 of Schedule A1 (evidence and information);
	(c)	where the claim has been or is treated as withdrawn under regulation 74 (amendment and withdrawal of claim).
			
		(3)	The relevant authority shall make a decision on each claim within 14 days of the provisions of regulation 72 and 73 being satisfied or as soon as reasonably practicable thereafter.
			….”

	Until 5 April 2004, there was a subparagraph (d) in regulation 76(2) but that is not material to these appeals. Regulation 2 provides that “relevant authority” means an authority administering housing benefit.  

16.	Regulations 62, 63 and 66 of the CTB Regulations are in substantially the same form as regulations 72, 73 and 76 of the HB Regulations.

17.	Regulations 79 and 81 of the HB Regulations (and regulations 69 and 70 of the CTB Regulations) originally provided for reviews by local authorities of their determinations and for further reviews by Review Boards.  However, from 2 July 2001, those provisions were replaced by provisions for revisions, supersessions and appeals (by Schedule 7 to Child Support, Pensions and Social Security Act 2000, “the 2000 Act”).  At the same time, most references to “determinations” in the HB regulations were replaced by references to “decisions”: but not the word “determined” in regulation 76(1) (or the equivalent reference in regulation 66(1) of the CTB Regulations) which survived.  Although claims in three of the cases before us were made before 2 July 2001, for the purposes of these appeals, the differences between the two regimes are insignificant and reference need be made to the current legislation only.  

18.	So far as material, Schedule 7 to the 2000 Act provides:

“Introductory

1	(1) 	In this Schedule ‘relevant authority’ means an authority administering housing benefit or council tax benefit.  

	(2)	In this Schedule ‘relevant decision’ means any of the following
	(a)	a decision of a relevant authority on a claim for housing benefit or council tax benefit;
	(b)	any decision under paragraph 4 of this Schedule which supersedes a decision falling within paragraph (a), within this paragraph or within paragraph (b) of sub-paragraph (1) of that paragraph;
	but references in this Schedule to a relevant decision do not include references to a decision under paragraph 3 to revise a relevant decision.

Decisions on claims for benefit

2	Where at any time a claim for housing benefit or council tax benefit is decided by a relevant authority
(a)	the claim shall not be regarded as subsisting after that time; and
(b)	accordingly the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.

Revisions of decisions

3	(1)	Any relevant decision may be revised or further revised by the relevant authority which made the decision….

Decisions superseding earlier decisions

4	(1)	… [Any] relevant decision… may be superseded by a decision made by the appropriate relevant authority….

….

Appeal to appeal tribunal

6	(1)	Subject to sub-paragraph (2), this paragraph applies to any relevant decision (whether as originally made or as revised under paragraph 3) of a relevant authority which
(a)	is made on a claim for, or on an award of, housing benefit or council tax benefit; or
(b)	does not fall within paragraph (a) but is of a prescribed description.

	(2)	This paragraph does not apply to 
	….
	(e)	any such other decision as may be prescribed.

	(3)	In the case of the decision to which this paragraph applies, any person affected by the decision shall have a right to appeal to an appeal tribunal.

	(4)	Nothing in sub-paragraph (3) shall confer a right of appeal in relation to
	(a)	a prescribed decision; or
	(b)	a prescribed determination embodied in or necessary to a decision.

	(5)	Regulations under sub-paragraph (4) shall not prescribe any decision or determination that relates to the conditions of entitlement to housing benefit or council tax benefit for which a claim has been validly made….

….

Appeal from tribunal to Commissioner

8		(1)	Subject to the provisions of this paragraph, an appeal lies to a Commissioner from any decision of an appeal tribunal under paragraph 6 or 7 on the ground that the decision of the tribunal was erroneous in point of law….”

19.	Regulation 16 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (the 2001 Regulations”) provides:

“(1)  	No appeal shall lie against a decision specified in the Schedule to these Regulations.

	(2)	…

	(3)	In this regulation references to a decision include references to a determination embodied in or necessary to a decision.”

	Paragraph 1 of the Schedule provides:

“	No appeal shall lie against a decision made by virtue of, or as a consequence of the provisions in Part X (claims), Part XII (payments) and Part XIII (overpayments) of the Housing Benefit Regulations except a decision under 
	(a)	regulations 72(5), (11), (15), 72A(1), 72B(1) and (4) (date of claim);….”
		
Paragraph 2 makes equivalent provision in respect of council tax benefit cases.

The Hammersmith Case

20.	The claimant claimed housing benefit and council tax benefit on 30 September 1999.  It appears that he was in receipt of income-related jobseeker’s allowance and he therefore claimed on a short form.  On 1 February 2000, the local authority sent out a full application form which the claimant returned on 12 April 2000.  However, because it was incomplete, it was sent back to him and it was finally returned properly completed on 11 May 2000.  Council tax benefit was awarded to the claimant only from 17 April 2000 because the full application form had not been received within 4 weeks of it being sent to the claimant.  The claimant was invited to make a separate claim for backdating in respect of the period from 4 October 1999 to 16 April 2000, which he duly did on 14 March 2001.

21.	Meanwhile, on 11 October 2000, the local authority had requested further information from the claimant in connection with his claim for housing benefit, namely a letter from his landlord confirming that the tenancy had been renewed, documentary proof of payments made to the landlord since the start of the tenancy, details of any arrears (and, if there were any arrears, the claimant was asked to obtain the necessary details from his landlord so that benefit could be paid straight to the landlord) and a copy of any notice of a hearing date of possession proceedings.  He was told to provide the information within 4 weeks but was not told of any particular consequences if he did not.  

22.	In the absence of any response, it appears that the local authority issued a letter to the claimant telling him that his claim would not be determined, although no copy of that letter is now in existence.  On 7 December 2000, the claimant wrote to say that he had never had any receipts or a rent book, that he did not owe any rent and that in August 1999 he had had a small amount of savings, which had since gone.  In a further letter, dated 9 January 2001, the claimant provided a copy of a tenancy agreement and an unsigned and undated letter, apparently from his landlord.  The claimant relied upon that letter to show that he was up-to-date with his rent.  However, the local authority noted that the landlord had referred to receipt of a cheque from the claimant and that raised concerns with the authority because, when the claimant had completed his claim form, he had declared that he held no bank accounts and had only one building society account containing £200 in respect of which he provided one page of the passbook with transactions from January to March 2000.  Until then, the authority had not had any concerns about the claimant’s income or capital, which it had doubtless assumed had been investigated in the context of the claim for jobseeker’s allowance.  

23.	The local authority then also discovered that, until 23 August 1999, the claimant had been the owner of the property in respect of which he was claiming housing benefit.  He had sold the property for £127,000 to his new landlord.  Although there are exceptions, generally a person cannot claim housing benefit in respect of a house that he once owned.

24.	The claimant failed to respond to a request to attend an interview on 29 March 2001 and on that date the local authority requested that he provide within 28 days documentation relating to the sale of his property and “verification of the proceeds of the sale”.  This time, the letter said:

“If you do not provide the information requested above, to the Investigations Team within 28 days of the date of this letter your claim for benefit will be cancelled FROM THE START as it will not have been possible to verify that no change of circumstances has occurred on your claim.”

25.	In the light of the new evidence, on 15 May 2001 advice was given by an investigation officer to the assessment team.  The claimant was told that the advice was “to cancel [his] Council Tax Benefit claim with effect from 16/04/00 and not to assess [his] claim for Housing Benefit”.  He was informed that if he disagreed “with any part of this decision” he had a right of appeal against it.  As the 2000 Act had not come into force in May 2001, the reference to a “right of appeal” was presumably to a right to request a “review” under regulation 79 of the HB Regulations and regulation 69 of the CTB Regulations.  

26.	He was again invited to attend an interview.  He failed to attend two interviews in September 2001 but was eventually interviewed under caution on 23 October 2001.  He said that he had been a stockbroker employed until the early 1990s but he had been unemployed since then, had run up substantial debts and had been forced to sell his home.  The bulk of the proceeds of sale had gone to two banks to whom he was in debt and the balance had gone to a “loan shark” who had been paid by his solicitors.  He was unable to give the name of either the loan shark or the solicitors who had acted for him.  He said that the landlord had received his cheque from the solicitors in respect of a deposit and the first few payments of rent and that subsequently he had had the Stock Exchange make payable to his landlord a cheque in respect of an option on a share he had been given in consequence of the reorganisation of the Stock Exchange.  He also said that he had sold jewellery and other possessions and had paid cash to his landlord.  He said that he had only an Abbey National account and a building society account, neither with any substantial amount of money in it.  He was also asked about the proceeds of sale of a property that had belonged to his parents and he said that that money too had gone to a bank.  

27.	On 6 November 2001, the local authority wrote yet another letter to the claimant asking for information, namely “verification of the proceeds of sale” of his home, “confirmation” of the name and address of the solicitors acting for him in respect of that sale, “verification” of the sale of his parents’ property, “confirmation” of the name and address of the solicitor acting for him with regard to that sale, “verification” of his debts with a bank and the loan shark and of the £10,000 he had received from the Stock Exchange, and copies of bank statements for his two accounts.  He was told:

“If you fail to provide this information within 1 calendar month your claim for Housing Benefit will be cancelled (or not assessed/reassessed) in accordance with the Housing Benefit General Regulations 1987, 73(1) and 76(2)(b) and Council Tax Benefit Regulations 1992, 63(1) and 66(2)(b).”

28.	The claimant replied to say he had no way of verifying the proceeds of the sale of his home, that he did not know the name of his solicitor, that the sale of his parents’ property could only be verified through the Land Registry and that he did not know the name of the solicitors acting for him in respect of the sale of his parents’ property.  He gave the local authority permission to contact the bank, he said that he was unable to give the name of the loan shark, that the fact that money was paid by the Stock Exchange had been widely covered in the financial press and that he could prove that he was a member and that he did not have 12 months’ bank statements but he was able to enclose up-to-date mini statements from cash machines.  

29.	On 9 January 2002 the local authority said that it had “looked into [the claimant’s] appeal” and “decided to uphold the benefits investigation team recommendation to cancel [his] Council Tax Benefit claim, on the grounds that [he] failed to provide the information reasonably requested”.  The claimant was told that, if he disagreed with the decision, he had a right to appeal to a tribunal.  

30.	On 19 January, the claimant lodged an appeal.  It is unclear whether a letter was written on 9 January 2002 in respect of housing benefit but the local authority’s submission to the tribunal was to the effect that the decision under appeal was the decision of 15 May 2001, which had been “reconsidered” on 9 January 2002.  The tribunal was provided with what the local authority now accepts was an inadequate account of the history of the case.  

31.	The claimant did not attend the hearing of his appeal on 19 November 2002.  The tribunal consisting of one legally qualified panel member allowed the appeal in respect of council tax benefit on the ground that there had been no revision or supersession of the award to the claimant.  It was apparently unaware of the claimant’s claim for the backdating of council tax benefit to cover the period 4 October 1999 to 16 April 2000, and did not deal with this issue.  In respect of housing benefit, the tribunal decided that it had no jurisdiction to hear the appeal because the local authority’s “decision” had been made under regulation 76(2)(b) of the HB Regulations and was not a “decision on a claim” within the definition of “relevant decision” in paragraph 1 of Schedule 7 to the 2000 Act so there was no right of appeal under paragraph 6(1)(a).  Alternatively, the tribunal considered that a right of appeal would be excluded by paragraph 1 of the Schedule to the 2001 Regulations, made under paragraph 6(2)(e) of Schedule 7 to the 2000 Act.  

32.	The tribunal subsequently granted leave to appeal in the light of R(IS) 6/04 in which Mr Commissioner Howell QC decided that similar provisions relating to the determination of claims for income support infringed the claimant’s rights under the European Convention of Human Rights and were of no effect.  The appeal was lodged on 4 June 2003.  

The Ealing Case

33.	The claimant moved into a housing association flat on 15 January 2001.  She appears to have completed a claim form for housing benefit and council tax benefit on 9 January and a copy of that form was received by the local authority, from her landlord, on 6 February.  The original was received on 15 February.  On 17 March, the local authority wrote to the claimant, misspelling her name, leaving out the name of the block of flats in which she lived and putting the wrong postcode on the letter.  In the letter, they asked the claimant to provide proof of identity in one of a number of specified forms, and proof of income in the form of payslips or a certificate of earnings completed by her employer.  She was told:

“If you do not provide this information within 4 weeks of the date of this letter I will not be able to assess your entitlement to benefit and your claim will be closed.  If you still wanted to claim you would have to make a new application which would only be considered from the date we receive it.  I will not be sending any reminder letter for this information.  If you have any difficulty supplying this information please let me know immediately.”

	On the same date, another letter was sent to the claimant, with her name properly spelled but with the same defects in the address.  This asked her to complete a whole new form because “we have a new way of working” and gave the same warning about the effects of not providing information.  Those two letters bore the same reference number.  

34.	On 5 April, except for an insignificant misspelling, a correctly addressed letter was sent to the claimant under a different reference number.  That asked for copies of part of her payment books for income support and child benefit, two forms of proof of identity and proof of her National Insurance number.  The same warning as on the previous letters was included.  

35.	On 17 July, a letter was sent to the claimant under the first reference number and with the same mistakes in the address as in the first two letters.  This again asked for proof of identity and for payslips and also asked for “your tenancy date”.  It said:

“This information must be supplied within the next 4 weeks.  If I do not hear from you during this time I will have to lapse your claim and you will need to reapply if you still want to claim benefit.  However, any new claim you make will only be valid from the Monday following its receipt.  I will not be able to send any reminder letter for this information.”

	The letter also asked for documentary proof of savings and capital.  On 10 August, the claimant sent her daughter’s birth certificate, copies of gas and electricity bills, the tenancy agreement, a building society statement and 5 weekly payslips relating to weeks in May, June and July.  

36.	The next contact appears to have been a telephone enquiry from the claimant on 24 September, which elicited a further letter from the local authority.  This again carried the first reference number but the address was correct except for the postcode.  It said:

“I would be grateful if you could fill out the enclosed form and return it to me as soon as possible.  You cannot get any benefit until you do this.

Because you did not reply to the letters sent to you in April 01, your January application form was lapsed, therefore you need to complete a new application form.

Regarding the missing documents, they were returned to the Housing Benefit Department by the Post Office.  Please make arrangement to collect them from Dawley House, Second Floor, as soon as possible.

If you do not have all the information the form asks for, you should still send me your form right away.  You can send all the necessary documents I have asked for as soon as possible after.  This means that you won’t lose benefit that you might be entitled to.”

	The letter also contained the same warning as in the first letters.  There is no evidence that the claimant had previously been told that her claim had “lapsed”.

37.	It appears that the claimant then visited the housing benefit office on 1 November.  She was given a new claim form and told to return it, which she did on 21 November.  On the form she said:

“I would like housing benefit to be backdated to January 2001, which is when I first made a claim.  My application was wrongfully sent to Hammersmith and Fulham who you thought was responsible for paying the housing benefit.”

	It is to be noted that the letter of 5 April 2001 did state that the claimant appeared to have been placed in property by the London Borough of Hammersmith and Fulham and that Ealing took the view that Hammersmith were liable for council tax benefit and the claimant was asked whether she had submitted an application to them.  However, in a letter dated 11 February 2002, again sent to the correct address but with the wrong postcode, the local authority indicated that they considered the claimant had not shown good cause to justify backdating her claim.  

38.	She was told that she could appeal and on 6 March 2002 she did so.  The local authority reconsidered their decision but did not alter it.  The claimant consulted solicitors who made a written submission on the appeal stating that the claimant had not received the letters in March and April from the local authority and pointing to the various errors in the addresses.

39.	The appeal came before the tribunal on 14 January 2003.  The tribunal consisted of the same legally qualified panel member as decided the Hammersmith case and, as in that case, the tribunal took the view that it had no jurisdiction to consider the local authority’s decision to treat the claim made on 6 February 2001 as having lapsed.  It considered whether the claimant had good cause for failing to make a claim from 15 January 2001 to 20 November 2001.  It found that she could reasonably have been expected to return the claim form given to her on 1 November 2001 within a week and that consequently she did not have continuous good cause for delay in claiming up to 21 November 2001, whatever the cause of earlier non-communication.  

40.	However, on 29 July 2003, the tribunal granted leave to appeal in the light of R(IS) 6/04.  The claimant’s appeal was received on 29 August 2003.

The Haringey Case

41.	The claimant had been in receipt of income-based jobseeker’s allowance and housing benefit.  On 22 January 2001, he ceased to be entitled to jobseeker’s allowance and, on 29 January, the local authority received a claim for an extended payment of housing benefit on the grounds that he was starting work.  On that form he said that he had started work on 23 January for an employer (whose name and address in Romford he gave), rather than being self-employed.  The fact that he had ceased claiming income-based jobseeker’s allowance was confirmed by the Department of Social Security.  

42.	On 14 February 2001, the local authority received a new claim for housing benefit.  The claimant gave the same name and address for his employer and said that he would normally be working as a promotions clerk for 16 hours a week for £60 per week.  Attached to the form were two documents.  The first was a letter, purporting to come from a director of the company employing him, stating that he had been employed from 23 January at a “salary” of £60 per week.  The company was a “glamour model agency”.  The second document was a “Self-employed Supplement” which was a form that the local authority required self-employed claimants to complete, giving details about their business and their income and expenditure.  The claimant declared that he had been employed from 23 January 2001, that his income was £60 per week and that he had expenses of £3 per week in respect of telephone and £2 per week in respect of postage, packing and delivery costs.  He drew lines through the spaces available for all other expenses except for stationery, business travel and petrol, which he left blank.  

43.	The local authority were suspicious of the claim because the earnings appeared low for the number of hours worked and the cost of travelling to Romford would substantially have consumed the earnings (although the local authority seem to have assumed that the claimant would have had to travel rather more often than would have been required to work only 16 hours a week).  Upon investigation, it transpired that the address given for the company was that of the Romford Citizens’ Advice Bureau.  On 6 June 2001 the claimant supplied a letter from the director of the company explaining that that was a mailing address used for security purposes.  It was stated that the actual office was situated a few doors away.  Upon further investigation, it appeared that that address was occupied by a photographers’ business the proprietor of which said that he knew the director of the claimant’s purported employers as a customer who brought models to the studio but that she did not have an office there.  Furthermore, that director was the only person from the company who had visited that address.  In the light of that information - and also in the light of the fact that the claimant had stated that he fronted a rock band and had started a music production company but had failed to declare either of those ventures on his claim for benefit - the benefits investigation officer recommended that no benefit should be paid on the claim from 26 February 2001.

44.	On 19 June, the local authority wrote to the claimant stating:

“… it was therefore decided that your claim for benefit should be withdrawn with effect from 26 February 2001.  I hope this letter has clarified the situation.  If you disagree with this decision you have the right of appeal.  If you wish to appeal you must put your reasons in writing and say why you disagree.  You should do this within 6 weeks from the date of this letter.”

45.	On 9 July, solicitors acting for the claimant asked for a review and provided a copy of search records confirming that the company was a registered company (the number having appeared on the letters previously sent by the claimant) and extracts from Yellow Pages and a Thompson Directory referring to the company.  They also stated that the claimant had sent regular invoices to the company and that he had worked mainly from home using his computer although he occasionally did some work at the company’s business address.  

46.	Following further correspondence, the local authority wrote to the claimant’s solicitors on 6 September 2001 saying:

“… A decision was made not to award benefit for the claim submitted in February 2001.  

As [the claimant] has not provided any other evidence or information to support his case I have decided to confirm the original decision not to award benefit for period he was working.  Based on the fact that the Council does not believe he worked for [the company] at the address stated.  He clearly knows [the director].

I have therefore sent a letter to your client informing him that I have upheld the decision made on 19 June 2001 not to award benefit from 26 February 2001.  A copy of this letter is enclosed for your attention.”

	On the same date, the local authority wrote to the claimant stating that it had “carefully considered [his] appeal” and decided to confirm the original decision.  It gave reasons and informed the claimant that if he did not agree he could request that the matter be determined by a tribunal.  By a letter dated 5 October 2001, the claimant’s solicitors stated that the claimant wished his case to proceed to an appeal tribunal and set out grounds of appeal.  

47.	On 10 December 2002, the appeal came belatedly before the tribunal (again consisting of the legally qualified panel member who had determined the Hammersmith case) who took the view that the letter dated 19 June 2001 was not a decision refusing benefit but a refusal to decide the claim at all under regulation 76(2)(b) of the HB Regulations.  As in the Hammersmith case, and the Ealing case which he heard subsequently, he held that there was no right of appeal from such a refusal and that, insofar as the letter dated 6 September 2001 confirmed that refusal, there was no right of appeal against that decision either.  On 2 July 2003, the clerk to the appeal tribunal received correspondence referring to a request for a statement of reasons made on 6 January 2003.  On 29 July 2003, the legally qualified panel member declined to produce a statement of reasons, on the ground that the letter dated 6 January 2003 had not been received and the letter dated 2 July 2003 was outside the 3 month time limit prescribed by regulation 54(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, as applied by regulation 23 of the 2001 Regulations.  In those circumstances, he was bound to refuse the subsequent application for leave to appeal.

48.	However, on 26 September 2003 Mr Commissioner Howell QC granted leave to appeal, waiving the lack of a statement of reasons.  He observed that the reasons for the decision had been adequately spelled out in the decision notice.  

The Sunderland Case

49.	On 26 June 2002, the local authority received claims for housing benefit and council tax benefit from the claimant who was a single parent with two children.  The claims appear not to have been on a proper form because the form in the papers before us was signed only on 8 July 2002.  The claimant was employed as a care assistant and was in receipt of working families’ tax credit but had recently become incapable of work due to “stress related problems”.  On her claim form, she left blank the boxes relating to “maintenance payments you receive” under the heading “Other Income”.  In its context, that amounted to a declaration that she did not receive any maintenance payments.  

50.	On 29 July 2002, the local authority asked for proof of wages and two recent monthly bank statements for all accounts held.  Information was provided but the evidence as to earnings was said to be for the wrong period and yet another request was issued.  The bank statements revealed receipts of payments from the Child Support Agency on 24 May and 12 June 2002.  On 25 September 2002, the local authority wrote to the claimant asking for information as to the amount of maintenance she received for her children and official verification of the payments.  It had no record of any response to that request and, on 24 October 2002, purported to treat the claim as “void”.  

51.	On 6 November 2002, the authority received from the claimant a letter from the Child Support Agency containing a list of maintenance payments received.  She made a further claim for housing benefit and council tax benefit on a form signed on 11 November and awards were subsequently made from that date.  

52.	On 19 November, the claimant requested the authority reconsider its decision to regard her earlier claim to be void.  On 20 January 2003, the authority responded, stating that the claim received on 26 June 2002 would “remain defective”.  She was also told that it was considered that the new award had been correctly made from 11 November 2002 and was told that she could appeal against that decision.  She duly did so on 27 January 2003.  

53.	The case was put before the tribunal as an appeal against the refusal to backdate the claim made on 11 November 2002.  It came before the tribunal on 3 July 2003.  The tribunal accepted evidence from the claimant that, upon receipt of the letter dated 25 September 2002, she had telephoned the local authority and stated that she no longer received child support maintenance.  She said that she was told to provide evidence from the Child Support Agency to that effect and that she was delayed because the Child Support Agency first of all provided evidence in respect of the wrong child.  The tribunal considered that the authority’s request for that evidence was unreasonable and that they had then had in their possession sufficient evidence to make a decision on the claimant’s entitlement to benefit.  It considered that the relevant decision of the authority was in effect a decision under regulation 76(2)(b) (although it was mistyped as 76(1)(b)) of the HB Regulations and it allowed the appeal on the ground that the authority had been obliged to make a decision on the claimant’s entitlement to benefit under regulation 76(3) within 14 days of the provisions of regulation 72 and 73 being satisfied.  It determined that the claimant was entitled to housing benefit and council tax benefit from 8 July 2002.  The local authority now appeals with the leave of Mr Commissioner Rowland, granted on 6 November 2003.  

Initial Observations on the Facts

54.	All four cases before us concern alleged failures by claimants to provide information or evidence following a specific request to do so.  However, they fall into distinct sub-categories.  In the Hammersmith and Haringey cases, the claimants have never provided information desired by the local authorities but both claimants nonetheless submit that the local authority not only had sufficient information to make a decision on his claim but had sufficient information upon which to determine the claim in his favour.  In the Ealing and Sunderland cases the claimants have provided the necessary information but the local authorities submit that they are not entitled to benefit because the information was provided too late and so the claimants are not now entitled to any decision on their respective claims.  

55.	It may also be noted that all four local authorities used, at one time or another, non-statutory language to the effect that a claim was “cancelled”, “closed”, “lapsed” “void” or “withdrawn” - and two of the claimants were told they had a right to appeal in circumstances where the local authorities now submit that they had no such right.  As indicated at the beginning of this decision, this reflects the extent of confusion caused by this legislation.

The Secretary of State’s approach to the Legislation

56.	Mr Moffett for the Secretary of State submitted that, because regulation 72(1) of the HB Regulations requires a claim to be both 
(a)	in writing on a properly completed approved form (or in such other written form as the local authority may accept) and 
(b)	accompanied or supplemented by such evidence as is required in accordance with regulation 73(1), 
a claim that is properly made at the time it is received can subsequently become defective under regulation 72(6) due to a failure to comply with a requirement to provide evidence made under regulation 73(1) after the claim has been received.  

57.	Mr Moffett submitted that regulation 76(3) expressly imposed a duty upon the relevant authority to decide claims (in respect of which, see paragraph 73 below).  Therefore, whether or not a claim was defective had important consequences, because, if the claim were not defective, the local authority would be obliged by regulation 76(3) to make a decision on it, whereas if it were defective that duty would be removed by regulation 76(2).  Consequently, it was implicit that the relevant authority must make a decision under regulation 72(6) as to whether or not the claim was defective.  

58.	He submitted that such a decision was not appealable, by virtue of paragraph 1 of the Schedule to the 2001 Regulations (set out in paragraph 19 above), which denies an appeal in respect of any decision made under the provisions of Part X of the HB Regulations with specific exceptions which do not include decisions under regulation 72(6).

59.	Therefore Mr Moffett submitted that the local authority was entitled to make a decision - a non-appealable decision - not to decide a claim where there had been non-compliance with a regulation 73 request for information.  However, he went further.  He submitted that, not only was there no duty to decide such a claim, but there was no power to do so - because, once the duty imposed by regulation 76(3) was taken away because regulation 76(2) applied, there was no source of any power to make a decision.  Insofar as Sullivan J decided to the contrary in R v Westminster City Council ex parte Berisha (CO 1441/97) (unreported, 31 July 1998) that case was, he submitted, incorrectly decided.  

60.	Therefore, it was Mr Moffett’s case that there was no question of a local authority making any sort of decision under regulation 76(2) not to make a decision on a claim.  This was entirely logical, he argued, because section 5(1)(h) of the Administration Act conferred a power to make regulations requiring any information or evidence “needed for the determination of a claim” to be furnished.  Thus the claimant could be required to provide information or evidence only if it was impossible to determine the claim without it and it would inexorably follow that, if the information or evidence requested was not provided, it would remain impossible to determine the claim.

The Local Authorities’ approaches to the Legislation

61.	The advocates for each of the local authorities (Mr Bhose, Miss Roberts and Mrs Grehan) were at one in submitting that Mr Moffett was wrong to suggest that there was no power to make a decision on a claim where a claimant had failed to produce information or evidence required under regulation 73(1).  They submitted that Sullivan J in ex parte Berisha had been right to hold that the language of the legislation implied the existence of a power when he said on this issue:

“Does that mean that failure to observe the requirements to provide information within the tight time limits will have no effective sanctions, so there will be numerous claims left in limbo?  The answer is no.  It is plain from regulation 76 that if there is any failure to provide information within the timescale set out in the regulations, the authority is under no duty to determine a claim.  The regulations are very carefully drafted.  If the draftsman had intended to say the authority shall not determine a claim, as opposed to shall be under no duty to determine a claim, I have no doubt that he would have said so.

The distinction between powers and duties is well established throughout the field of administrative law.  Thus, in my judgment, the fact that regulation 76(2) provides that in four instances listed an authority shall be under no duty to determine the claim, does not mean that the authority has no power to determine a claim if those four circumstances exist.

If the power remains then, of course, the Council has a discretion as to whether or not to exercise it.  The discretion would not be entirely unfettered.  It would have to be exercised reasonably in a Wednesbury sense….”

Therefore, Miss Roberts conceded that, in the Hammersmith case, it would have been possible for the local authority to have decided that the claimant was not entitled to benefit on the ground that he had capital in excess of the prescribed limit because he had failed to account satisfactorily for the proceeds of sale of his home.  Mr Bhose, however, submitted that, in the Sunderland case, it would not have been possible properly to determine the claimant’s entitlement to benefit because there were grounds for believing that she was continuing to receive maintenance payments but there was no way of knowing how much she was receiving as the evidence of past receipts was too vague and the local authority did not know the amount she was entitled to receive.

62.	Miss Roberts and Mrs Grehan went further and disagreed also with Mr Moffett’s analysis of the relationship between regulations 72 and 73.  They submitted that a claim was not defective under regulation 72(6) where there was a mere failure to provide information required under regulation 73(1), for the following reasons.

(i)	There is a distinction between (i) the manner of making a claim and (ii) the provision of information and evidence by a claimant.  The distinction is drawn in section 5 of the Administration Act, where subsection (1)(a) refers to the “manner” of making a claim (echoing the language of section 1(1)(a)) whilst subsection (1)(h) refers to the provision of information and evidence.  

(ii)	Regulation 72 is concerned with the manner of making a claim: it is made under section 5(1)(a).  Regulation 73 is concerned with the provision of information: it is made under section 5(1)(h). 
 
(iii)	The distinction is also supported by the scope of regulation 72(7) and (8), which provide a remedy only for cases where the “manner” of making a claim is inadequate.
 
(iv)	Regulation 72(6) reflects this distinction.  It is concerned only with a failure to make a claim in the “manner prescribed in paragraph (1)”, which refers only to that part of regulation 72(1) that requires a claim to be “in writing and made on a properly completed form approved for the purpose by the relevant authority or in such written form as the relevant authority may accept as sufficient in the circumstances of any particular case or class of cases”. 
 
(v)	Furthermore, if Mr Moffett’s analysis were correct, regulation 76(2)(b) would be redundant in its entirety, as it would not add anything to regulation 76(2)(a).  On the usual principles of statutory construction, a construction which would lead to an entire paragraph of a regulation being otiose should be avoided.   
 
(vi)	Mr Bhose added a further point in support of the construction advocated by Miss Roberts and Mrs Grehan, namely that the language of regulation 72(6) suggests that whether or not a claim is defective is something that can be judged when the claim is “received at the designated office”.   On Mr Moffett’s analysis a claim may become defective due to a subsequent failure to provide information or evidence, which is less compatible with the wording of regulation 72(6). 

63.	Miss Roberts and Mrs Grehan recognised that the implication of their approach was that the determination not to make decision on a claim under regulation 76(2) was not made in consequence of a decision under regulation 72(6).  However, they submitted that a decision under regulation 76(2) was not a “relevant determination” within the scope of paragraph 1 of Schedule 7 to the 2000 Act because it was not “a decision of a relevant authority on a claim for housing benefit” - what Mr Commissioner Jacobs in CIB/2338/00 called an “outcome decision” - so that it was not a decision to which paragraph 6 (appeals) applied.  Because it was not a decision to which paragraph 6 would otherwise apply, it was unnecessary for any reference to Part XI of the HB Regulations to be made in the Schedule to the 2001 Regulations.  Miss Roberts bolstered that submission by reference to paragraph 2 of Schedule 7 to the 2000 Act, which provides that a claim shall not subsist after it is determined - which implies that it does subsist if a decision is taken not to determine it.  Therefore, she submitted, a decision not to determine a claim is not final so far as the claim is concerned.  The claim can always be reactivated by the local authority deciding under regulation 73(1) to extend the time for providing relevant information and evidence.

64.	In the alternative, Miss Roberts and Mrs Grehan submitted that a decision under regulation 76(2)(b) was made in consequence of a local authority’s decision under regulation 73(1) not to extend the time for providing relevant information and evidence and so was not appealable by virtue of paragraph (1)(a) of the Schedule to the 2001 Regulations.  

65.	Mr Bhose and Mrs Grehan further submitted that, where a decision had been made not to determine a claim, it was not possible subsequently to make a claim for backdating under regulation 72(15) to cover the period since the original claim because there had been no “failure to make a claim”.  Mrs Grehan went so far as to submit that the local authority she represented and the tribunal in the Ealing case had erred in considering whether there had been good cause for a delay in claiming even in respect of a period between the date a claimant had belatedly provided information and evidence and the making of a new claim required because the local authority had refused to extend time under regulation 73(1).  (Mr Moffett responded to this by submitting that regulation 72(15) had to be read as referring to a claim that was not defective and, as on his analysis a claim was defective when information and evidence had not been provided, a decision based on an alleged failure to provide information and evidence did not per se prevent a claimant from making a claim for backdating in respect of a period that would have been covered by an earlier claim had it not been found to be defective.)

The Claimants’ approaches to the Legislation

66.	The primary submission of Mr Stagg (for the Haringey claimant) was that, on the facts of the Haringey case, the local authority had in any event actually made a decision as to the claimant’s entitlement to benefit.  

67.	However, in the alternative, by reference to the old adjudication regime still in force at the material time, he submitted that, if the tribunal was right to hold that the local authority had made a decision under regulation 76(2) not to determine the claim, that was itself a determination of the claim.  That determination gave rise to a right to request a review under regulation 79 and subsequently, under transitional provisions, to a right of appeal under paragraph 6 of Schedule 7 to the 2000 Act.  That right was not ousted by paragraph 1 of the Schedule to the 2001 Regulations, because regulation 76 is in Part XI of the HB Regulations and the decision was not made in consequence of a decision under regulation 72 or 73.  He acknowledged that there had been a decision under regulation 73(1) to require certain information and evidence but he submitted that the decision under regulation 76(2) could not be said to be a consequence of that earlier decision.  He submitted that the words “in consequence of” had to be construed narrowly because otherwise there would be no right of appeal against any award of benefit as any such award was dependent on there having been a decision under regulation 72(6) that the claim for benefit was not defective.

68.	Mr Drabble submitted that there was no power to make regulations authorising a local authority to make no decision on a claim, and that regulation 76(2)(b) merely authorised a local authority to defer making a decision while they were still actively considering the case.  Consequently, he joined Mr Stagg in submitting that, where a local authority made a decision to the effect that they were not prepared to consider a claim further, that was a “decision on the claim” giving rise to a right of appeal.  He further submitted that, if paragraph 1 of the Schedule to the 2001 Regulations had the effect that there was no right of appeal, there was a breach of Article 6 of the European Convention on Human Rights and that provision should be regarded as ultra vires to the extent that it precluded an appeal.  He acknowledged that the reasoning in R(IS) 6/04 had been overtaken by the subsequent decision of the House of Lords in Runa Begum v Tower Hamlets London Borough Council (First Secretary of State intervening) [2003] UKHL 5, [2003] 2 AC 430 in which it was held that there was no breach of Article 6 where an appeal from a local authority’s decision in respect of their duties to homeless people lay only on a point of law.  However, he submitted that the House of Lords’ conclusion that there was no unfairness in not having an appeal on a point of fact was reached against the background of a system of internal review by a different officer of appropriate seniority whereas, in housing benefit and council tax benefit cases, such system of internal review as there had formerly been had been replaced by an appeal to a tribunal.

The Relationship between Regulations 72 and 73

69.	We agree with Miss Roberts and Mrs Grehan that a failure to comply with a requirement to provide information or evidence made under regulation 73(1) after a claim has been submitted does not render the claim defective under regulation 72(6).  We found their submissions summarised in paragraph 62 above persuasive. 

70.	We have already referred to the principle of statutory construction based upon the premise that Parliament is unlikely to have intended a particular provision to be entirely empty.  Mr Moffett submitted that the construction suggested by Miss Roberts and Mrs Grehan would make redundant the reference in regulation 72(1) to the provision of information and evidence in accordance with regulation 73(1).  That is not necessarily the case, because it is still arguable that a claim is defective when there is a breach of a requirement to provide information and evidence imposed under regulation 73(1) by the language of the claim form itself.  However, it was common ground before us that a requirement under regulation 73(1) had to be specific as to the nature of the information or evidence required, had to state clearly the time within which the information or evidence had to be provided and had to indicate the consequences of not complying with the requirement.  In practice, instructions in claim forms to provide information and evidence are not usually in a form sufficient to amount to a requirement under regulation 73(1) and, as in each of the cases before us, local authorities who are dissatisfied with the information or evidence provided with the claim form issue a subsequent letter that does amount to a request under regulation 73(1).  In each of these cases, the local authority has relied upon such a subsequent letter.  

71.	Therefore, it is possible that the construction put forward by Miss Roberts and Mrs Grehan may do some violence to the language of regulation 72(1).  However, for the reasons given by them (see paragraph 62 above), Mr Moffett’s proposed construction would leave regulation 76(2)(b) entirely redundant.  On balance, we consider his proposed construction does more damage to the wording of the provisions as a whole, and the general scheme of the legislation favours leaving redundant part of regulation 72(1), if that is necessary, rather than the entirety of regulation 76(2)(b).

The Vires of Regulation 76

72.	Mr Drabble’s submissions worked from the premise that, when an appropriate authority received a claim for benefit, it has a general duty to determine that claim.  We consider that premise to be correct.

73.	In the statutory scheme for benefits, there is no express duty on an authority to determine a claim for benefit made to it.  Mr Moffett submitted that regulation 76(3) imposes such a duty - but we do not agree.  Regulation 76(3) is based upon a presumption that there is a duty (as is regulation 76(1)), but does not create that duty itself.  It merely provides for the time in which the duty must be exercised (just as regulation 76(1) merely provides for the person by whom the decision must be made).  Parts of Regulation 76 presuppose a duty to decide claims, but that duty is not created by that regulation.

74.	However, although not expressly created within the statutory scheme, clearly such a duty must generally be implied.  As we have pointed out (paragraph 9 above), subject to satisfying the relevant conditions, a person is entitled to a particular housing benefit or council tax benefit.  We will come to the detailed statutory provisions shortly but generally, where entitlement to any benefit is dependent upon a claim being made to the appropriate authority (as it is by virtue of section 1 of the Administration Act), there must be an obligation upon that authority within a reasonable time properly to determine claims made to it, so that claimants who have an entitlement are identified and paid.  To construe the provisions otherwise would be to undermine the entire scheme.  There may be circumstances in which a scheme might negate that duty - but for it to do so, clear statutory language would have to be used.  

75.	The local authorities (and the Secretary of State) submit that, where a claimant fails to respond to a request for information or evidence made under regulation 73, on a proper construction of the statutory provisions as a whole, the general duty upon them to decide a claim is negated and they can decide not to determine the claim.  They rely upon regulation 76(2) as the provision entitling them to make the various decisions they have purported to make in the cases before us.  The next question for us to consider consequently concerns the provision in the primary legislation which might authorise the Secretary of State to make such a regulation.  

76.	There is no provision in the primary legislation expressly enabling the Secretary of State to make regulations providing that a local authority need not, or should not, determine a claim.  Bearing in mind our view on the general duty on appropriate authorities to determine claims, this in itself we consider telling.  But Mr Moffett submitted that the power was to be implied from section 5 of the Administration Act because the natural consequence of a failure to comply with a properly made requirement to provide information or evidence, made under regulations authorised by section 5(1)(h), would be that the claim simply could not be determined at all.  He submitted that a regulation 73 request could only be made in circumstances in which the information or evidence sought was required by the authority, because, without it, a determination of the claim was simply impossible.  As a matter of construction, the regulations could not require a local authority to do the impossible, i.e. determine a claim which was incapable of being determined.  However, attractively as it was put, we consider Mr Moffett’s submission misconceived.  

77.	In a claim in the civil or criminal courts, the evidence available to the court is rarely if ever as complete as it could possibly be.  However, on the basis of the evidence available (no matter how complete or incomplete) it is always possible for the court to determine the case before it.  In respect of any particular issue, one party will carry the burden of proof.  If the available evidence is insufficient to satisfy that burden, that party will fail upon that issue.

78.	The position on a claim for benefit was recently considered by the House of Lords in Kerr (cited in paragraph 5 above).  Whilst there are striking similarities between a claim for benefit and (say) a civil claim, there are also differences arising primarily from the fact that the process in benefits claims is inquisitorial rather than adversarial.  In Kerr (at paragraph 63), Baroness Hale (with whom the rest of their Lordships agreed) approved the approach of Mr Commissioner Henty in CIS/5321/1998, when he said in relation to the provision of information by a claimant:

“A claimant must to the best of his or her ability give such information to the [adjudication officer] as he reasonably can, in default of which a contrary inference can always be drawn.”

 79.	An administering authority is therefore required to inform a claimant of the information and evidence he should provide and it is for the claimant to supply such information or evidence as best he can.  Where a claimant fails to provide information or evidence he can reasonably be expected to provide, there is no express sanction - but an inference may be taken against him and the case or the relevant issue may as a result be determined against him.  Where the claimant is unable to supply information or evidence, the duty to obtain it may pass to the administering authority (under the principles expounded in Kerr).  The authority must, of course, always act not only in accordance with the regulations governing the benefit but also reasonably.  However, where the administering authority has done all that can reasonably be expected of it in seeking information and evidence, it will always be open to it to make a decision on the claim, making such adverse inferences against a claimant for any failure to disclose that are reasonable and proper.  If the information and evidence are insufficient to show that the relevant conditions of entitlement have been satisfied, then the claim will be refused.  All of this is well established in Commissioners’ jurisprudence, but helpfully and succinctly confirmed in Kerr (see especially Lord Hope at paragraphs 13-17 and Baroness Hale at paragraphs 56-63). 

80.	However, because of the inquisitorial nature of its function, it may not be possible for the administering authority reasonably to determine a claim until it has required the claimant to provide the relevant information or evidence that it reasonably supposes to be within his knowledge or his ability to obtain.  Regulation 73(1) provides a mechanism for such a request.  An authority could not reasonably make a decision adverse to the claimant during the currency of such a request but, if the claimant fails to comply with all reasonable requests and the authority has exhausted the other lines of investigation it is bound to explore under the principles set out in Kerr, it will be in a position to decide the claim.  Therefore, the consequence of a failure to comply with a requirement to provide information or evidence may be delay in the making of an award (whilst other lines of investigation are explored) or an adverse inference being drawn against the claimant, but it is not an inability to determine the claim at all.

81.	For these reasons we reject the submissions made on behalf of the Secretary of State based upon the inability of a decision-maker to make a decision on a claim in the absence of information or evidence requested.  

82.	Nor do we accept Mr Bhose’s submission that, although it may be possible to determine some claims where there is non-compliance with a request for information, it is not possible to determine cases like the Sunderland case where a claimant clearly has some income but the local authority does not know how much.  In drawing inferences, a local authority is entitled to take a robust view in a case where a claimant has been given an opportunity of providing adequate evidence of his or her income and has failed to do so.  In these circumstances, the authority may give the claimant a further opportunity to provide the evidence - but, once reasonable opportunity has been exhausted, it will be entitled to draw an appropriate adverse inference.  That might be to infer that the claimant’s income is at a level to give no entitlement to benefit, or entitlement at a level less than the claimant is seeking or less than the level to which the claimant may have been entitled had the requested information been provided.  In these circumstances, the authority is only required to act within the bounds of reasonableness.

83.	We also note that, if the City of Sunderland had become aware only after an award of benefit had been made that the claimant had received maintenance - just as in the Hammersmith case the local authority became aware of the claimant’s recent receipt of the proceeds of sale of his house only after council tax benefit had been awarded - they would have been obliged to make a proper decision in order to revise or supersede the award and so terminate it.

84.	We are satisfied that regulation 76 was not made under section 5 of the Administration Act.  As Mr Drabble pointed out, section 5 falls within Part I of that Act which is concerned with claims and payments and not with adjudication, which fell within Part II.  The only relevant provision in Part II was section 63, which, as described above (paragraph 12), has now been replaced by section 34 of the 1998 Act, which by way of reminder provides:   

“(3)	Regulations may make provision requiring authorities to whom claims for housing benefit or council tax benefit are made by, or in respect of, persons who have been entitled to a jobseeker’s allowance or to income support or state pension credit to give priority, in prescribed circumstances, to those claims over other claims for any such benefit.”

	Whilst section 34(3) empowers paragraphs (4) and (5) of regulation 76, it could not empower the making of paragraphs (1) to (3).  In our judgment, those paragraphs can only have been made under the broad power in section 123(1)(d) of the Contributions and Benefits Act to make a scheme for housing benefit.  As we have already indicated, it is implicit in the benefit scheme - for example, from section 34 of the 1998 Act and paragraph 2 of Schedule 7 to the 2000 Act - that the authorities administering the benefits will make decisions as to entitlement to the benefits.  Section 175(4) of the Contributions and Benefits Act provides that “any power conferred by this Act to make regulations or an order… includes power to make thereby such incidental, supplementary, consequential or transitional provision as appears to the Secretary of State to be expedient for the purposes of the regulations or order”.  Given this, we consider a scheme can make provision for the determinations that necessarily have to be made under it.

85.	Does the power in section 123(1)(d) cover each of the subparagraphs of regulation 76?  We consider it is clearly wide enough to cover paragraph (1) (which merely makes explicit which authority is to determine a claim - the only matter within the scope of the curious heading of the regulation), and also paragraph (3) (which merely makes provision for the time within which the determination should be made; see paragraph 73 above).  Paragraph (2), however, is another matter.  Before its validity can be determined, some consideration must be given to its proper construction.  What does it actually mean?  

The Proper Construction and Validity of Regulation 76(2)

86.	It follows from our approach to the relationship between regulations 72 and 73 that regulation 76(2)(a) makes provision for cases where there is a defective claim ab initio; regulation 76(2)(b) makes provision for cases where a claimant has failed to provide information or evidence; and regulation 76(2)(c) makes provision for cases where a claim is withdrawn.  In each case, the local authority is purportedly relieved of the duty to make any decision on the claim.  

87.	Subparagraph (b) of regulation 76(2) is of primary concern in the cases before us.  A number of constructions were put forward with which we must deal. 

88.	First, regulation 76(2)(b) may simply allow, or require, a local authority to put a claim into limbo, neither making nor intending to make any decision upon it but leaving the file open in case the claimant produces the required information or evidence.  That, however, would render the time limit in regulation 73(1) for providing information or evidence of no effect - because it would leave open the possibility of the claimant at any time producing the relevant information and evidence and requiring the local authority to make a decision on the claim under which the claimant suffered no penalty for the delay, other than the delay in receiving benefit.  That would certainly be a curious result, running contrary to the general duty on authorities to decide claims made to them.  Not surprisingly, it was not the result for which the local authorities contended.  They submitted that regulation 76(2)(b) permits them to “close the file” and effectively bring the claim to an end.  We too do not consider this construction a proper one.  

89.	Second, Mr Drabble’s submitted that regulation 76(2)(b) merely permits the local authority to defer making a decision on a claim while waiting for further information or evidence or deciding what to do in the light of a failure to provide such information or evidence.  However, neither do we accept that this is the proper construction.  Such a provision would be unnecessary because in any event it is not “practicable” to make a decision on a claim while awaiting further information or evidence or immediately afterwards, and so the local authority’s entitlement to defer consideration is adequately provided for in regulation 76(3).  Moreover, it is difficult to see how a claimant could have “failed” to satisfy the requirements of regulation 73(1) until the time allowed for providing the information or evidence has expired.

90.	A third construction was based upon the submissions of Mr Stagg and Mr Drabble that any decision which in substance permits the local authority to bring the claim to an end or to “close the file” (and therefore each of the decisions made in the cases before us) is in fact a decision on the claim.  It amounts to a decision that the claimant is not entitled to benefit, albeit that it is not formally expressed in terms of the conditions of entitlement to benefit.  We found these submissions very compelling.  

91.	We reject Miss Roberts’ analysis of the nature of the decisions in these cases, i.e. that they are not “final” because a claimant can always request the relevant authority to extend time for submitting a response to a request for information.  It may be true that a local authority can always extend the time for providing information or evidence and can do so retrospectively but, as Mr Stagg observed, until a local authority does decide to extend the time, a decision not to determine a claim is just as final as a decision that the claimant is not entitled to benefit because, say, his income is too high, which decision is always subject to the possibility of revision or supersession under paragraphs 3 or 4 of Schedule 7 to the 2000 Act.  

92.	The Ealing and Sunderland cases, where the local authorities now have the relevant information but refuse to make a decision as to the claimant’s entitlement to benefit in respect of a period of several months, provide particularly graphic illustrations of the final nature of decisions that the local authorities purport to make under regulation 76(2)(b).  But the type of decisions made in the Hammersmith and Haringey cases are also final in nature.  The claimants say they cannot provide any more information or evidence than they have and the local authorities state that, even if the claimants did now produce further information or evidence, they would not consider awarding benefit from the original date of claim unless there were some good reason for varying the regulation 73(1) requirement by extending the time within which the information or evidence had to be provided.  Such decisions have the hallmark of legal finality.

93.	As we have indicated, these submissions made on behalf of the claimants are persuasive.  Leaving aside for the moment regulation 76(2), we accept that the decisions (not to make a determination of a claim where there is an outstanding or time-lapsed request for information under regulation 73) have the every appearance and substantive consequence of a final decision on a claim

94.	However, we cannot ignore regulation 76(2), which expressly provides that an authority is under no duty to make a decision on a claim where a claimant has failed to satisfy a regulation 73 request.  The language of regulation 76(2)(b) is simply irreconcilable with the construction commended on behalf of the claimants.  

95.	In the search to give regulation 76(2)(b) some meaning we are therefore led to look at a fourth possible construction.  Regulation 76(2) could be given some meaning if it allows what is in substance a decision on a claim to be treated as not being such a decision.  This was effectively the construction put forward on behalf of the local authorities, once the false premise that such decisions were not decisions on claims was stripped away.  

96.	Given that the alternative constructions (all of which have been referred to above) have been discounted, we are driven to conclude that this is the proper construction of regulation 76(2)(b).  However, although this construction would give regulation 76(2) some substance (and therefore could not be criticised on that score), in our view the Secretary of State has no power to make a regulation having such an effect.  The terms of section 123(1) of the Contributions and Benefits Act are broad but express provision would be required if a scheme made under that section were to enable something to be treated as being something it is not.  Such express provision is made, for instance, by section 136(5), the predecessor of which was described by Lord Donaldson of Lymington MR as “allowing the Secretary of State to prescribe that black is white and that nothing is something and vice versa in the context of income and capital” (Chief Adjudication Officer v Foster [1992] QB 31, 45).  But there is no such express provision in relation to regulation 76(2).  Therefore, even if regulation 76(2) is construed in this way in an effort to give some substance to it (as we consider it must be), the inevitable consequence is that the provision is ultra vires.  If this provision is ineffective, then there is no power given to local authorities to decide not to determine a claim.

97.	We have concentrated on regulation 76(2)(b), because that is the relevant provision in the cases before us, but we appreciate that our conclusion means that the entirety of regulation 76(2) is of no effect as being ultra vires.  However, holding that the other two subparagraphs of regulation 76 are ultra vires appears to us to have no practical implications.

98.	Even in the absence of subparagraph (a), a finding that a claim was defective would inexorably lead to a decision that the claimant was not entitled to benefit by virtue of section 1(1)(a) of the Administration Act - and it is hard to see what is achieved by relieving the authority of a duty to make a decision in such terms.  Subject to Mr Drabble’s submissions as to the effect of Article 6 of the European Convention on Human Rights, such an adverse decision appears in any event to be unappealable by virtue of paragraph 1 of the Schedule to the 2001 Regulations.  

99.	A provision in the terms of subparagraph (c) of regulation 76(2) appears to be unnecessary because a claim that has been withdrawn ceases to subsist at all and the duty to determine the claim naturally falls away with the claim itself.

The Construction of the Local Authorities’ Decisions and the Right of Appeal

100.	It follows that we must approach these appeals on the footing that the local authorities issued decisions on the claims with the effect that, on the basis of the evidence available at the time the decision was made, each claimant was not entitled to benefit.  In each case other than the Hammersmith case, the local authority can be taken not to have been satisfied on the basis of the evidence taken into account that the claimant’s income was low enough to entitle him or her to benefit.  In the Hammersmith case, the local authority can be taken not to have been satisfied that the claimant’s capital was less than the maximum allowed.  

101.	The local authorities may have reached their conclusions because the claimants had failed to provide within the time allowed information or evidence that the local authorities considered it reasonable for them to produce, but that is insufficient to bring paragraph 1 of the Schedule to the 2001 Regulations into play.  The substantive decisions were not made in consequence of any decision under regulation 73 but were simply made on the basis of the evidence available, which included the fact that the claimants had failed to produce evidence that, in the local authorities’ warranted the drawing of an adverse inference.  In our view, the claimants clearly had rights of appeal against such decisions.  

102.	Mr Bhose expressed concern that local authorities would be given a great deal of work if there were rights of appeal in cases where the claimant failed to produce information or evidence.  He told us that large numbers of files are closed because claimants fail to respond to requests for information or evidence.  However, in most of the cases the claimant will either not wish to pursue his or her claim or else should be spurred into producing the required evidence by the notification of an adverse decision.  There will only be appeals if claimants wish to pursue their cases without producing the relevant information and evidence, because if they produce that information or evidence promptly after an adverse decision is made (i.e. within a month or such other time as is allowed, although time will automatically be extended in the event of an appeal being made: see regulations 4(1) and 5 of the 2001 Regulations) the decision can be revised, and any appeal will lapse (under paragraph 3(6) of Schedule 7 to the 2000 Act).

103.	We consider that not only is our conclusion that claimants have the right to appeal in this type of case the only proper construction of the wording of the specific statutory provisions, but there are good grounds for appeals against decisions of this type being available.  It is generally the case that the scheme grants a right of appeal against decisions of executive decision makers.  For there to be no such right in this type of case would lead to injustice in some cases.  Doubtless there will be some unmeritorious appeals as there are against other types of decisions, but local authority decision makers are not always right.  The Ealing case illustrates the possibility of a local authority’s request for information and evidence being wrongly addressed and going astray.  The Haringey case illustrates the possibility of a real dispute as to whether a claimant has provided all the information or evidence he could reasonably be expected to provide.  It is consistent with the scheme as a whole that such matters should be open to review by an appeal tribunal. 

Application of the Principles to the Hammersmith Case

104.	Clearly, the local authority was not satisfied that the claimant had shown, among other things, that he had not retained the proceeds of the sale of his home.  

105.	The tribunal was right to say that the proper decision in relation to the award of council tax benefit should have been in terms of supersession.  We consider that the tribunal could have given such a decision itself - but there has been no challenge by the local authority to the tribunal allowing the claimant’s appeal in respect of that award of council tax benefit.  The local authority may have made a subsequent decision in proper terms.  In any event, there is no appeal before us in relation to these issues, and we do not propose to say anything further about them.  However, as indicated above (paragraph 31), the tribunal appears to have been unaware of the claimant’s claim for backdating of council tax benefit, and we do propose to deal with this.     

106.	In relation to housing benefit, the tribunal erred in law in not regarding the local authority’s decision as a decision on a claim and considering its merits.  We must therefore set aside its decision, but we are able substitute our own.

107.	In our view, the claimant’s account as to the disposal of the proceeds of sale of his home, which had been sold just over a month before he made his claims, is inherently unconvincing.  If his version of events were true, we would have expected him to be able to produce at least some evidence in support and to have been more enthusiastic about attending interviews and hearings.  He has been given ample opportunity to provide more information and evidence, and we find it difficult to believe that he could not remember or with reasonable diligence find the name of solicitors who acted for him in the sale or provide copies of proper bank statements.  In the light of the claimant’s failures, we infer that, throughout the material period, he retained capital sufficient to disentitle him from housing benefit and council tax benefit.  Consequently, we find that he was not entitled to housing benefit or to council tax benefit in respect of the period covered by the claim for backdating (4 October 1999 to 16 April 2000).

108.	In the circumstances, the claimant’s appeal is in substance unsuccessful.  We formally set aside the decision of the Fox Court appeal tribunal dated 19 November 2002 but substitute a decision that the claimant is not entitled to housing benefit on the claim made by him on 30 September 1999 and is not entitled to council tax benefit from 4 October 1999 to 16 April 2000.  

Application of the Principles to the Ealing Case

109.	In this case, the local authority did not have evidence of the claimant’s identity or her earnings relevant to the time of her claim when they made their initial decision to “lapse” her appeal.  As the authority presumably believed she had had an adequate opportunity to provide that evidence, at that stage the authority was entitled to draw adverse inferences and decide that, on the basis of the available evidence, she was not entitled to housing benefit and council tax benefit on the ground that she was not an eligible person and that her earnings were too high.  

110.	The decision to “lapse” her claim should have been treated as a decision in terms of entitlement but, as it was not properly issued to her at the time, her time for appealing that decision did not start to run.  Her subsequent appeal to the tribunal against the refusal to backdate her second claim should have been treated as being also an appeal against the decision on the earlier claim, which was made in respect of the same period.  

111.	By the time the case came before the tribunal, the claimant had provided persuasive evidence of her identity and of her earnings.  (Although the payslips in the bundle before us are in respect of a later period, our understanding is that the claimant had provided evidence in respect of the relevant period.)  Accordingly, the local authority was in a position to revise its decision.  However, it did not do so, and in these circumstances, the tribunal erred in not dealing with the appeal substantively.  

112.	We can however substitute our own decision, namely that the claimant is entitled to housing benefit and council tax benefit for the period 15 January to 25 November 2001.  We leave the local authority to determine the precise amount of entitlement.  If there is any further dispute, it must be referred back to us.

113.	For these reasons, we allow the claimant’s appeal.  We set aside the decision of the Fox Court appeal tribunal dated 14 January 2003 and substitute the decision set out above.

Application of the Principles to the Haringey Case

114.	In this case, the local authority was clearly not satisfied that the claimant had revealed to it his true income and was entitled to draw an adverse inference and find that his income was too high to entitle him to housing benefit.  

115.	The tribunal erred in treating the decision as not having been a decision on a claim and therefore in not considering its merits.  We consequently allow the appeal. 

116.	However, we are unable to substitute our own decision because there remains a live issue in the case which need further investigation and findings.  The claimant has not been consistent in his explanation of his employment status or the place of his employer’s business and he has declared an income that is barely at a subsistence level.  On the other hand, he has provided the local authority with material that would enable them to ask the director of the company by whom he claims to have been employed about his earnings and his case is that his employer has no office so that addresses are only for correspondence and discretion is required due to the nature of the business and that he cannot provide evidence of earnings from other employment because he does not have any.  

117.	Accordingly, we refer this case to a differently constituted tribunal for determination.  It will be for the tribunal to hear evidence from the claimant and consider whether he has provided all the information and documentary evidence he could reasonably be expected to provide and to draw such inferences and make such findings as appear appropriate in the light of all the available evidence.  Before the hearing, the local authority should consider where there are any further enquiries it wishes to make and it should also consider whether there are any issues, apart from the amount of the claimant’s earnings, upon which the tribunal should adjudicate.  Both parties may wish to make another written submission to the tribunal and they should inform the tribunal of the outcome of any further claims for housing benefit of which they are aware.

Application of the Principles to the Sunderland Case

118.	On 24 October 2002, when the local authority decided to “void” the claimant’s claim for housing benefit and council tax benefit, it believed that she had not declared all the payments of maintenance she had received and that she had failed to respond to a request to do so to enable them to determine the amount of her income.  In those circumstances, it was entitled to infer that her income was too high to entitle her to housing benefit and council tax benefit and the decision to “void” her claim can be treated as a decision in those terms.  

119.	The claimant’s request of 19 November 2002 should have been treated as an application for revision and, as the local authority had the relevant information by then, the decision should have been revised.  

120.	As it was, the tribunal correctly treated the subsequent appeal as an appeal against the decision of 24 October 2002 as well as against the refusal to backdate the later claim.  It was unnecessary for the tribunal to find that the local authority had been made aware before 24 October 2002 that the claimant was no longer receiving maintenance and of her difficulties in obtaining the evidence they wanted - a finding that Mr Bhose submitted was based on no evidence, although it seems to us that it was a finding that the tribunal was entitled to make on the basis of his assessment of the claimant’s oral evidence - and the tribunal erred in construing regulation 76(2) as it did rather than finding it to be ultra vires.  Nonetheless, the tribunal reached the only conclusion open to it because it found that the claimant had provided information and evidence that established her entitlement to benefit.  

121.	Accordingly, we dismiss the local authority’s appeal.

        

 His Honour Judge Gary Hickinbottom
		 Chief Commissioner
(Signed on original)

Mark Rowland
Commissioner
(Signed on original)

S. J. Pacey
Commissioner
(Signed on original)

9 September 2004