CH/4501/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal in part.  I set aside the decision of the Cheltenham appeal tribunal dated 23 August 2004 and I substitute my own decision.  The claimant is entitled to council tax benefit from 12 May 2003 to 6 July 2003 and from 2 February 2004 to 9 May 2004.  He is not entitled to council tax benefit before 12 May 2003 or from 7 July 2003 to 1 February 2004.

REASONS

2.	I held an oral hearing of this appeal at Cheltenham county court.  The claimant appeared in person, with his partner.  The local authority, Cheltenham Borough Council, was represented by Mr Paul Aldridge.  I have been much helped by the submissions made at the hearing.

3.	On 19 April 2004, a council tax inspector made a routine visit to the address where the claimant and his partner live.  The property had been understood to be empty and to have been unoccupied since 1996.  However, the claimant and his partner were found to be in the property.  On 21 April 2004, they were sent bills for council tax from 1 April 2002 but it was accepted that the date might be inaccurate as it was not known when they had moved in.  They were asked to provide that information so that the bill could be revised if necessary.  The claimant replied, saying that they had lived at the address since November 2002 but that they did not owe any council tax as they had been in receipt of jobseeker’s allowance since moving in.  The bills were amended to reflect the occupation having started on 1 November 2002 and a form for claiming council tax benefit and housing benefit was issued, with a suggestion that a back-dated claim for be made.  Such a claim, for council tax benefit only, was made on 7 May 2004.  In the small space allowed for reasons for requesting back-dating, he wrote: “We didn’t realise we had to fill in a form for council tax benefit.” 

4.	On 25 May 2004, council tax benefit was awarded with effect only from 10 may 2004, the first Monday after the claim had been made.  The claimant protested but was told that his claim for backdated benefit had been refused because he would have been advised about claiming council tax benefit by the JobCentre.  In response, the claimant said that, when he had moved to Cheltenham, he was recovering from mental illness and that his doctor would confirm that that was so.  He also said:  “moving home is one of the most stressful things for a person.  I regret that I may have forgotten to fill in a council tax benefit form at the time this was probably due to stress.” 

5.	The local authority declined to revise the decision, saying in a letter dated 14 June 2004:

“The rules allowing retrospective awards are fairly harsh and the government imposes severe financial penalties on councils for such awards irrespective of their justification.

“Claims have to be considered carefully.  In order to qualify for backdated benefit a person must be able to show good cause for the late application due to circumstances beyond their control and that they were continuously prevented from applying throughout the relevant period.

“Benefit regulations state that Council Tax Benefit cannot be awarded more than 52 weeks before the date on which the authority received the claimant’s written request for backdating.  in your case, your original request for backdating was the date you handed in your application which was 12 May 2004.  Backdated benefit can therefore only be considered with effect from 12 May 2003.

“You have informed the council that you were recovering from mental illness when you moved to Cheltenham about 2 years ago and that you forgot to fill in a Council Tax Benefit form due to stress.

“I have contacted the Department for Work and Pensions who have confirmed that [your partner] was claiming Jobseeker’s Allowance in her sole name until 16 January 2004 and there is no record that she contacted the Council tax Department to advise them that she was living in the property or to seek advice with regard to claiming Council Tax Benefit.  They have also confirmed that you made a joint claim for Jobseeker’s Allowance on 16 January 2004 and that both yourself and [your partner] have been signing on as available for work since that time.

“In view of the above, I have to agree with the original officer’s decision that you have not shown continuous good cause why you did not contact the council to request Council Tax Benefit before your application received on 7 May 2004.”

6.	The claimant appealed, saying that his partner had claimed when there had been a break in their relationship and she was suffering from stress. Enquiries of the JobCentre revealed that the claimant and his partner had made a joint claim for jobseeker’s allowance from 22 October 2002 until 3 July 2003, his partner had claimed as a single person from 4 July 2003 to 29 January 2004 and that there had been a joint claim again from 30 January 2004.  During the period when the claimant’s partner had been claiming as a single person, the claimant himself had made a separate claim from a different address.  He was interviewed under caution but it was decided not to take any action.

7.	On 9 July 2004, the claimant’s partner purported to “appeal” in respect of the period when she was claiming jobseeker’s allowance.  It is not clear that she had actually made a claim until then.  In any event, her case is not before me.

8.	The claimant did not ask for an oral hearing of his appeal and his appeal was dismissed at a “paper hearing” on 23 August 2004.  The statement of the tribunal’s reasons is terse.

“1.	This was a hearing on papers at the request of …, the Appellant.

“2.	All of the papers were read and considered by the Tribunal.

“3.	The Tribunal adopted as findings of fact the facts set out in Section 5, Summary of Facts, paragraphs 1-9 inclusive.

“4.	Based on those facts the Tribunal considers that the decision of the Cheltenham borough council dated 28 may 2004 refusing to backdate the Appellant’s claim for benefit to be correct and dismissed the Appellant’s appeal.

“5.	The tribunal was satisfied that the local Authority had correctly interpreted the Council Tax and Housing Benefits Regulations and upheld its submission to the tribunal.”

 9.	The claimant unsuccessfully applied for the decision to be set aside, saying: “Had I know that they were not taking my past mental illness seriously enough I would have wanted to attend the tribunal” and enclosing a letter from his general practitioner, stating that the claimant registered with the clinic in December 2001, at which time he was taking medication for schizophrenia and that he had moved away from 2003 until early 2004.  The claimant also explained that he had formerly been an in-patient in a mental hospital but had been an out-patient before his move to Cheltenham.  He said that he had run out of medication and that at the time he initially claimed jobseeker’s allowance in Cheltenham he was between prescriptions.  He now appeals with the leave of Mr Commissioner Bano, who suggested that the tribunal made no finding on the claimant’s contention that he had good cause for his failure to claim because of his illness.

10.	Cheltenham Borough Council’s written submission did not address the question whether the tribunal’s decision was wrong in law but did argue that it was correct in fact.  Further evidence was submitted suggesting that the claimant was receiving housing benefit in Solihull from 21 July 2003 to 23 January 2003.  It was also pointed out that the letter from the general practitioner said that the claimant had been registered with his practice in December 2001 and that any gap in medication would therefore have been long before the claim for jobseeker’s allowance made in October 2002.  In his reply, the claimant complained that the tribunal had not asked his doctor for medical evidence and said that his claim form for local authority benefits in Solihull had been completed for him by a member of staff at the hostel where he had been living.  He also said that he had made a mistake as to the date he had moved to Cheltenham and that he had in fact moved in November 2001.  Mr Commissioner Bano granted his request for an oral hearing.

11.	At the hearing, Mr Aldridge did not strenuously resist my suggestion that the tribunal’s decision was erroneous in point of law.  I have no doubt that the ultimate conclusion reached by the tribunal was one it was entitled to reach and that the claimant’s case on the papers before the tribunal was extremely weak.  I also accept that a tribunal is entitled to adopt a party’s findings and arguments without setting them all out in detail.  However, as Mr Commissioner Bano has pointed out, the findings the tribunal adopted in this case did not include any finding as to the claimant’s mental illness.  I accept that the evidence before the tribunal was not compelling and that the tribunal was not bound to obtain any further evidence, but the tribunal’s failure to mention the issue at all means that it is unclear whether it even considered the possibility of an adjournment to ask the claimant to obtain further evidence or to attend in person, which, considering the amount of money at stake and the possible vulnerability of the claimant would not have been an unreasonable approach.  Furthermore, the tribunal does not directly refer to the statutory tests it applied and the submission to the tribunal was not as clear as it might have been because the paragraph in section 6 of the submission, “relevant legislation”, relating to backdating accidentally referred only to the housing benefit legislation and not also to the council tax benefit legislation, although there was a correct reference in section 7.  I am satisfied that the tribunal’s decision is erroneous in point of law for failing to record adequate reasons for its decision.  A mere sentence or two, directly answering the claimant’s points, would have been sufficient.

12.	As the claimant and his partner attended the hearing before me, it is expedient for me to make findings of fact and substitute my decision for that of the tribunal, rather than referring this case to another tribunal.  

13.	Further evidence was adduced before me.  Firstly, the local authority obtained evidence from Westminster City Council to the effect that the claimant had been receiving housing benefit there from 18 October 2001 until 19 September 2002.  Secondly there was documentary and oral evidence relating to the property in Cheltenham, which explains a great deal about the background to this claim.  Having heard the claimant and his partner, I have no hesitation at all in accepting their honesty, although the claimant is not, by his own admission, good at remembering dates.

14.	The claimant had been detained in a mental hospital suffering from schizophrenia.  He met his partner there.  She had been admitted voluntarily following the break-up of her marriage.  When the claimant was discharged, he lived in hostel accommodation in Westminster while under the care of the West End Mental Health Team.  It now seems fairly plain that it was not the claimant who had originally been wrong about the year when he had moved to Cheltenham; the error was in the letter from the general practitioner.  The move appears to have been in late September or early October and it appears that it was not until December 2002 that the claimant registered with his doctor.  I accept that there was, as the claimant says, a period when he was without his Risperedol tablets.

15.	It is not in dispute that the there was a breakdown in the relationship between the claimant and his partner and that the claimant went to live in a hostel in Solihull from July 2003 until January 2004.  Given the consequences of the break-up of her marriage, the claimant’s partner may well have been considerably affected by his departure, as he has said.

16.	I have no medical evidence before me as to the effect of not taking Risperedol tablets or as to the claimant’s state of mind in October 2002 or January 2004 when he was probably offered the opportunity of completing council tax benefit forms.  However, I am prepared to accept that he was not as lucid as he was at the hearing before me and that failing to obtain the repeat prescription as soon as he should have done was probably also partly a consequence of the illness itself.  The claimant does seem to have been living in hostels, which suggests that he needed some support.  He tells me that the amount of medication was gradually reduced.  He registered with a doctor in Solihull and obtained more medication there but he is now not taking it at all.

17.	However, I do not consider that the mental health of the claimant and his partner was really the main cause of their failure to claim council tax benefit, although I do not suppose it helped.  The principal cause lies in the rather unusual circumstances that led to the claimant moving to Cheltenham in the first place and in a simple misunderstanding by the claimant.

18.	The claimant’s partner comes from a fairly well-to-do family and the property in Cheltenham where she and the claimant live was the family home where she once lived with her parents.  It now belongs to her and her mother.  Her father transferred his share to her in 1995, before his death.  Sadly, her mother is also afflicted with mental illness.  She is a patient of the Court of Protection and lives in London.  The property in Cheltenham remained empty from 1996 until the claimant and his partner decided that their mental health might be improved by moving from London.  It was therefore in a considerable state of disrepair and moving in seems to have required a considerable amount of work and also discomfort.  The heating system was not working and they had to sleep on the floor to start with.

19.	The claimant and his partner do not really remember the claim forms for council tax benefit that they were no doubt given when they claimed jobseeker’s allowance.  I do not believe that they simply forgot about them as the claimant has assumed and for which he has apologised.  As the local authority has pointed out, the claimant filled in other forms, albeit with some help.  I believe that the truth is that he and his partner did not consider that it was necessary to fill in the forms because they were not claiming housing benefit and did not see the need to claim council tax benefit because they were not paying council tax and it did not occur to them that they might have any liability for council tax if the form was not completed.  The claimant’s very first letter, dated 24 April 2004, asserted that he and his partner did not owe any council tax because they had been in receipt of jobseeker’s allowance and they both told me that it did not occur to them that they might have any liability.  His claim form also stated that he did not realise that a form had to be filled in.  Mr Aldridge very fairly pointed out that, because the local authority believed the house to be unoccupied in circumstances where the owners were exempt from council tax, no communication from the local authority was sent to the house at all.  Therefore, the usual letter or bill that would prompt a person into contacting the authority and being sent a form for claiming benefit was not received by the claimant.  

20.	The claimant and his partner were correct to believe that they should not have to pay council tax while in receipt of income-based jobseeker’s allowance.  However, what they did not realise is that, technically, they were liable for council tax but were entitled to claim council tax benefit in order to meet that liability.  In other words, they could only avoid having to pay council tax by claiming council tax benefit.  The claimant’s mistake was, in my judgment, entirely innocent.  There is nothing before me to suggest that the form issued by the JobCentre would have disabused the claimant of his misunderstanding, particularly as the claimant’s mental health was not perfect.  Nor do I consider that any claim for council tax benefit that might have been made in Westminster or Solihull means that it was unreasonable for the claimant not to believe he need not claim it in Cheltenham.  In both Westminster and Solihull, the claimant was also claiming housing benefit and, indeed, the evidence adduced in this case relates only to housing benefit.  Council tax benefit is usually claimed on the same form as housing benefit.  In Cheltenham, the claimant was not liable to anyone for rent or other housing costs and the context in which he received the claim form from the JobCentre was therefore different.  There is no evidence that the JobCentre discussed the claimant’s position as regards council tax with him or gave him any advice beyond the claim form itself.  As the claimant says, the JobCentre did not know that he had not filled in the form he was given.  The clerk might well have assumed that he would.  The question that arises is whether the claimant’s misunderstanding entitles him to have his claim for council tax benefit backdated.  

21.	Regulation 56 of the Council Tax Benefit (General) Regulations 1992 provides that entitlement to benefit following a claim generally starts “from the benefit week following the date on which that claim is made or treated as made”.  In this case, the claim was made on 7 May 2004, the day it was received at the local authority’s office (see regulation 62(5)(e)).  Regulation 62(16) provides –

“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.”

22.	It is clear that the claimant cannot be entitled to council tax benefit for the weeks from 7 July 2003 to 1 February 2004 when he was not living in Cheltenham, because he was not liable for council tax during that period.  It is also clear that regulation 62(16)(b) prevents the claimant from being entitled to council tax benefit before 12 May 2003, i.e., the first Monday after the date 52 weeks before the date of claim.  That leaves the periods from 12 May 2003 to 6 July 2003 and from 2 February 2004 to 9 May 2004.  Regulation 62(16) has the effect that the claim can be backdated to cover those periods only if the claimant had continuous good cause for failing to claim throughout those periods.

23.	Before 1996, the concept of “good cause” was a familiar one in relation to claims for backdating in respect of many social security benefits.  As long ago as 1949, a Commissioner said, in C.S. 371/49, –

“’Good cause’ means, in my opinion, some fact which, having regard to all the circumstances (including the claimant’s state of health and the information which he had received and that which he might have obtained) would probably have caused a reasonable person of his age and experience to act (or fail to act) as the claimant did.”

That dictum was expressly approved by a Tribunal of Commissioners in R(S) 2/63.  However, it had been applied very strictly in C.S. 371/49 itself and the Tribunal of Commissioners went on to modify the approach taken in such early cases (see paragraph 16 of the Tribunal’s decision), while approving the dictum.  They said, at paragraph 13 –

“Ignorance of one’s rights is not of itself good cause for delay in claiming.  It is in general the duty of the claimant to find out what they are, and how and when they should be asserted.  But an examination of numerous Commissioner’s decisions shows that over the years there has been a gradual but appreciable relaxation of the strictness with which problems of good and reasonable cause have been approached.  The Commissioner has long recognized a wide variety of circumstances, in which it would not be expected that a reasonable person would make inquiries or think that there was anything to inquire about.”

In other words, claimants cannot always be assumed to have an understanding of public administration.

24.	The question whether a claimant had “good cause” for failing to claim in any particular case is essentially a matter of judgment.  In this case, Mr Aldridge submitted that the claimant did not.  He relied essentially on the approach taken by the local authority before the tribunal.  However, in my judgment, the new background evidence before me is important and I am satisfied that the claimant’s belief that he did not need to claim council tax benefit in order to escape liability for council tax was one that he could reasonably hold in the circumstances of this particular case.  It was not due to carelessness or any desire to obtain something to which he was not entitled and it was a firmly held misunderstanding until he received the revised council tax bills and the claim form in May 2004.

25.	Accordingly, I allow the claimant’s appeal in respect of the relevant periods.  Entitlement to council tax benefit in respect of the intervening period must be determined in the context of his partner’s claim.  The question whether Cheltenham Borough Council will continue to enforce payment of council tax due before 12 May 2003 is outside my jurisdiction and will be determined by the panel of councillors helpfully mentioned by Mr Aldridge at the hearing, if the claimant applies to them for relief.  

25.	I appreciate that the cost of the backdating will be borne by Cheltenham Borough Council rather than by central government.  However, while that is no doubt intended to encourage local authorities not to take too relaxed an approach to issues of “good cause”, it does not justify an approach to “good cause” that excludes the possibility of a mistake being sufficient when the circumstances in which it arose have been considered.  The approach should be firm but fair.  Use of the well-established phrase in the legislation was obviously intended to have the effect that the general approach taken in social security cases should be applied also in council tax benefit and housing benefit cases. It should be recognised that claimants do not always understand the social security system and that there are circumstances in which the information given to them does not really help or in which they cannot reasonably be expected to ask for information.  It must also be borne in mind that, in the context of council tax benefit, a failure to award the benefit nearly always leaves the claimant with a debt, which is not the case with all social security benefits.  Here, no one has doubted that the claimant would have qualified for council tax benefit had he claimed in October 2002.  To the extent that his claim for council tax benefit is not backdated, he is left with a debt that he should never have acquired and which is being recovered from his meagre jobseeker’s allowance.  The debt was originally over £4,000.  That transfer of responsibility for funding the local authority from central government to the claimant could be regarded as harsh even if the claimant had been in perfect health and guilty of carelessness.

	(signed on the original)	MARK ROWLAND
		Commissioner
		6 June 2005