[2007] UKSSCSC CH_2995_2006 (21 September 2007)

CH/2995/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Rochdale appeal tribunal dated 19 June 2006 and I substitute my own decision.  The award of council tax benefit, made in the claimant’s husband’s name from 12 July 2004, is to be treated as having been made to his wife and is not to be superseded on the ground that she has failed to provide information to the local authority.  However, before arrears of benefit are paid or credited to the claimant’s council tax account, the local authority is entitled to take steps to verify her entitlement.  

	REASONS

2.	This appeal raises a point of some practical importance to local authorities.  It is concerned with the proper way of terminating awards of council tax benefit when a claimant has not co-operated with requests for evidence.  But first there is the question of who the claimant is in this particular case.

Who is the claimant ?

3.	In 2004, the claimant’s husband, who was an owner-occupier living with his wife and children, was given a form on which to claim council tax benefit.  The form was then completed by his wife as claimant on 8 July 2004 with him countersigning it as her partner on the same date, but the local authority continued treating him as the claimant and it was he who was awarded council tax benefit on the basis of the information contained in the form.  He did not object to the award being in his favour but he and his wife argued before the tribunal and have argued before me that actually the award should have been made to his wife.  The local authority points out that they are both equally liable for the council tax and says it does not matter which is treated as the claimant.  To some extent that is true but the fact remains that, while they are jointly liable for the council tax, it is not possible to make joint claims for council tax benefit.  Regulation 61 of the Council Tax Benefit (General) Regulations 1992 (S.I. 1992/1814) (now regulation 68 of the Council Tax Benefit Regulations 2006 (S.I. 2006/215)) made it perfectly clear that only one member of a couple could make a claim and that it was for the couple to decide which of them it should be.  The local authority was entitled to decide which of them should be treated as the claimant only if they did not decide themselves.  Here, the couple liable for council tax plainly decided that the wife should be the claimant and the local authority had no power to award the benefit to her husband.  In the circumstances of this case, it is possible simply to treat the award as having been made to her and it is she to whom I shall refer as “the claimant”.  However, I will also treat letters addressed to her husband as having been addressed to her.  He was plainly acting in relation to the claim, to which he referred as “my claim”, and neither he nor his wife can now plausibly assert that he was acting without authority.
 
The facts

4.	The award of council tax benefit was made, I think, on 27 September 2004 but with effect from 12 July 2004.  On 1 December 2004, a local authority visiting officer wrote to the claimant’s husband to say that he wished “to carry out a review of your claim” and would visit him on 14 December.  The claimant’s husband rang to say the date was inconvenient and it appears that a visit was provisionally fixed for 20 December 2004, but the claimant’s husband did not ring back to confirm the date as the local authority had understood he had promised he would.  On 7 January 2005, the visiting officer wrote to the claimant’s husband in the following terms –

“I made an appointment to see you on 20/12/2004, but you failed to keep this appointment.

“I therefore propose to visit you on Wednesday 19th January 2005, between 10am and 4pm.

“If you will be unable to keep this appointment I would be obliged if you could contact me on the above telephone number as soon as you receive this letter, to re-arrange the visit.

“If you are not in when I call, and you have not contacted me to rearrange the appointment, your Housing Benefit and Council tax benefit will be suspended within 7 days, and payments will cease until the review of your claim for benefit is completed.

“I trust that the above is clear, however if you require any further information please do not hesitate to contact me on the above telephone number.”

The claimant’s husband replied in writing pointing out, correctly, that he had not failed to keep the appointment on 20 December 2004 and stating that the proposed visit on 19 January would again be inconvenient, although he did not say why.

5.	Unfortunately, although that letter was received by the local authority on 17 January 2005 (and possibly also by fax on the day it was written), it had apparently not been linked to the appropriate file by 2 February 2005, when a different officer of the local authority wrote to the claimant’s husband as follows –

“According to my records I have not received a reply to my (sic) letter of 7.1.05 and I must now assume that you no longer want to claim Council Tax Benefit.

“I intend to recover any overpaid benefit from 12 July 2004.

“The money will be recovered from your Council Tax account, and will show on your next Council Tax Bill.

“If you have supplied the necessary information within the last few days, contact me immediately to make sure I have received it.

“If you disagree with my decision you have the right to ask me to look at it again.  If you wish to do this you should write to me within one month of the date of this letter, stating fully your reasons for review.”

6.	Not surprisingly, the claimant’s husband telephoned the local authority, to point out that he had replied to the letter of 7 January 2005, that he had not refused to supply any information because none had been requested and to query the necessity for a visit.  He was told a visit was required as a result of a “Government decision” and, according to the local authority’s note of the conversation, he replied that they were all very childish.  He asked why his benefit had been cancelled and was told that it was because he had refused to have a home visit.  He was advised that he should appeal and was told that he should do so within a month of the date of the letter.  According to the local authority’s own note, when he said that the letter had not mentioned a right of appeal, the officer answering the call “went through the cancellation letter with him ‘again’ and pointed out that the letter did explain everything”.  I am bound to say that I can see nothing in the letter of 2 February 2005 referring to an appeal as opposed to a review, which is not the same thing and is a process that ceased to exist in 2001 when a proper right of appeal was introduced.  In my judgment, the letter plainly did not tell the recipient that there was a right of appeal.

7.	The claimant’s husband followed up the telephone conversation with a letter dated 21 February 2005, which elicited a response from the local authority dated 7 April 2005 to the effect that, in all the circumstances, they would ask him “to complete a postal review” on a form enclosed with the letter “as soon as possible”.  The local authority did not otherwise respond to the request that it look at the entitlement to council tax benefit again.   Neither the claimant nor her husband completed the form, although it warned them that they were to “send it back as soon as you can or your benefit may stop” (emphasis in the original).  On 25 June 2005, the local authority’s Senior Benefits & Revenue’s Officer wrote to the claimant –

“I (sic, although in fact it had been a different officer) wrote to you on the 7 April 2005 advising you to complete and return a postal review form, a form was closed for your convenience.

“This form is to review your family and financial circumstances since your last claim.  This procedure is being carried out on all claims as directed by the Government in new benefit regulations that were introduced in April 2004.

“On the 11 April 2005 the advice to complete the postal review was reiterated in a telephone conversation with a colleague from this department.

“As at today, my records show that this form still has not be returned.

“As this form as (sic) not been returned I am formally informing you that your Council Tax Benefit claim has been terminated in accordance with Regulation 14 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001.

“However, if you provide the information requested, together with proof of all your income within a month of the date of this letter, I may be able to reinstate your benefit.

“If you think the decision I have made is wrong, you have one month to:

1.	Ask me to explain it.
2.	Ask me to look at it again.
3.	Appeal against the decision.

“If you want me to explain the decision, you can ask me to do this by telephone or in writing.  If you want me to look at it again, or appeal you must do this in writing.

“I trust that the above is clear, however, should you have any further enquiries, please do not hesitate to contact me on the above number.”

8.	It then appears that summonses were issued in Rochdale magistrates’ court against both the claimant and her husband in respect of the non-payment of council tax and that they in turn issued proceedings against the local authority in Oldham County Court.  Liability orders were made in the magistrates’ court.  In the county court, judgment in default was initially given in favour the claimant and her husband but that was set aside and their claim was then struck out on 29 September 2005.

9.	On 4 October 2005, the local authority received from the claimant an appeal against the decision of 2 February 2005.  This was treated as an appeal by her husband.  The local authority objected to it being admitted in view of the delay but a tribunal chairman extended the time for appealing on 27 February 2006.  After an adjournment, the hearing took place on 19 June 2006.

10.	In its submission to the tribunal, the local authority said that the decision of 2 February 2005, which was being challenged, was –

“[The claimant’s husband’s] entitlement to Council Tax Benefit was suspended from the 12 July 2004 in accordance with Regulation 13(1) and (2) of the Housing Benefit & Council Tax Benefit (Decisions & Appeals) Regulations 2001, because issues arose as to whether the conditions for entitlement to Council Tax Benefit were fulfilled.”

The tribunal’s decision

11.	The tribunal pointed out that the local authority’s submission as to the nature of the decision of 2 February 2005 was simply not consistent with the letter that was actually written on that date.  It reasoned that the decision of 2 February 2005 had wrongly purported to terminate entitlement to benefit and that the letter of 7 April 2005 had been notification of a reinstatement of entitlement to benefit following the revision of the decision of 2 February 2005 on the ground that it was in error of law, although it accepted that the letter of 7 April 2005 had not said that entitlement had been reinstated.  It then concluded that entitlement to benefit had been terminated again on 25 June 2005, that the appeal should be treated as an appeal against that decision and that the appeal should be dismissed as the claimant’s husband had received the letter of 7 April 2005 and had failed to provide the information requested in the form received with the letter.  The claimant’s husband had denied at the hearing that he had received that letter but the tribunal rejected that denial and found that the award of benefit had properly been terminated under regulation 14 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (S.I. 2001/1002) upon which the local authority had relied.  The claimant now appeals with my leave.

The arguments on this appeal

12.	The claimant and her husband have placed much emphasis in the grounds of appeal on the fact that the award should have been made to the claimant rather than her husband in the first place.  I have already dealt with that issue and explained why, although the award should have been made to the claimant, it makes no difference to the resolution of this appeal.  They have also argued that the appeal to the tribunal was only against the decision of 2 February 2005 and that the tribunal erred in upholding the local authority’s decision of 25 June 2005 because the local authority could not, on 25 June 2005, have terminated an award that had already been terminated on 2 February 2005.  I granted leave to appeal because it was not clear to me that, on the tribunal’s approach, there had been the suspension under regulation 11 or 13 of the 2001 Regulations that appeared to me to be necessary before entitlement could be terminated under regulation 14.  The local authority resists the appeal on the ground that it was justified in making a decision to suspend benefit under regulation 13 on 2 February 2005 and so was entitled to terminate the award on 25 June 2005 under regulation 14.  

The legislation

13.	It is important to look at the regulations in issue in this case against the background of the structure of decision-making in respect of entitlement to council tax benefit and it is also necessary to keep in mind distinction between entitlement and payment.  By paragraph 11 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000, a decision as to entitlement is final, subject to the provisions of the Schedule.  An award is usually made for an indefinite period and, by regulation 77 of the 1992 Regulations (now regulation 77 of the 2006 Regulations), is usually discharged by reducing the person’s liability for council tax, although payments in cash are made when such a reduction is impractical or inappropriate.  Reductions in council tax liability amount to payments of benefit in this context.  Payments ought, of course, to be made consistently with entitlement.  Once made, a payment made under an award cannot properly be recovered until there has been a retrospective decision as to entitlement.

14.	If a local authority wishes to end an award, it must usually revise or supersede the award under paragraphs 3 or 4 respectively of Schedule 7 to the 2000 Act, on grounds set out in regulations 4 and 7 respectively of the 2001 Regulations.  A revision usually acts retrospectively but the circumstances in which a supersession does so are limited to those prescribed in the 2001 Regulations and, in particular, in regulation 8.  These provisions are concerned with entitlement, rather than payment.

15.	Paragraphs 13 and 14 of Schedule 7 to the 2000 Act are concerned with payment.  Paragraph 13 authorises the making of regulations providing for the suspension of payments in certain circumstances and paragraph 14 authorises the making of regulations providing for the suspension of payments specifically for the failure to comply with an “information requirement”.  Paragraph 15 then authorises the making of regulations providing for a person to cease being entitled to benefit if he or she fails to comply with an “information requirement” when payment has been suspended.  By paragraph 14(3)(b), “information requirement” is defined by reference to regulations made under the Social Security Administration Act 1992 as –

“in the case of council tax benefit, a requirement made in pursuance of regulations under section 6(1)(hh) of the Administration Act to furnish information or evidence needed for a determination whether a decision on an award of that benefit should be … revised or superseded”.

16.	The regulation-making powers in paragraphs 13 to 15 of Schedule 7 to the 2000 Act have been exercised in regulations 11 to 14 of the 2001 Regulations.  Regulation 11(1) and (2)(a) provides –

“11.–(1)  A relevant authority may suspend, in whole or in part –
    (a)	any payment of housing benefit or council tax benefit;
    (b)	any reduction (by way of council tax benefit) in the amount that a person is or will become liable o pay in respect of council tax,
in the circumstances prescribed in paragraph (2).

(2)	The prescribed circumstances are where –
    (a)	it appears to the relevant authority that an issue arises whether –
    (i)	the conditions for entitlement to housing benefit or council tax benefit are or were fulfilled; or
    (ii)	a decision as to an award of such a benefit should be revised under paragraph 3 of Schedule 7 to the Act or superseded under paragraph 4 of that Schedule; …”

17.	Regulation 12 then provides for the restoration of payments or reductions once the local authority is satisfied that the benefit is properly payable and all outstanding issues have been resolved.

18.	Regulations 13 and 14 provided, at the material time –

“13. – (1) The relevant authority may suspend in whole or in part – 
    (a) 	any payment of housing benefit or council tax benefit;
    (b) 	any reduction (by way of council tax benefit) in the amount that a person is or will become liable to pay in respect of council tax,
in relation to persons who fail to comply with the information requirements (as defined in paragraph 14 of Schedule 7 to the Act) as provided for in regulations made pursuant to section 5(1)(hh) and 6(1)(hh) of the Administration Act (person required to satisfy the information provisions).

(2)	For the purposes of section 5(1)(hh) in so far as it applies to housing benefit and section 6(1)(hh) of the Administration Act the prescribed persons are – 
    (a) 	a person in respect of whom payment of benefit or a reduction has been suspended under regulation 11(2)(a);
    (b) 	a person who has made an application for a decision of the relevant authority to be revised or superseded;
    (c) 	a person in respect of whom a question has arisen in connection with his award of benefit and who fails to comply with the requirement in regulation 73 of the Housing Benefit Regulations or regulation 63 of the Council Tax Benefit Regulations to furnish information or evidence needed for a determination whether a decision on an award should be revised under paragraph 3 or superseded under paragraph 4 of Schedule 7 to the Act.

(3) 	The relevant authority shall notify any person to whom paragraph (2) refers of the requirements of this regulation.

(4) 	A person to whom paragraph (2) refers must – 
    (a) 	furnish the information or evidence needed within a period of – 
    (i) 	one month beginning with the date on which the notification under paragraph (3) was sent to him; or
    (ii) 	such longer period as the relevant authority considers necessary in order to enable him to comply with the requirement; or
    (b) 	satisfy the relevant authority within the period provided for in paragraph (4)(a) that – 
    (i) 	the information or evidence so required does not exist; or
    (ii) 	it is not possible for him to obtain the information or evidence so required.

(5) 	Where a person satisfies the requirements in paragraph (4), the relevant authority shall, so far as practicable, make, or as the case may be restore, the payment within 14 days of the decision to make or restore that payment.

14. – (1) A person in respect of whom payment of benefit or a reduction has been suspended – 
    (a) 	under regulation 11 and who subsequently fails to comply with an information requirement; or
    (b) 	under regulation 13 for failing to comply with such a requirement,
shall cease to be entitled to the benefit from the date on which the payments or reduction were so suspended, or such earlier date on which entitlement to benefit ceases.

(2) 	Paragraph (1) does not apply – 
    (a) 	subject to sub-paragraph (b), where not more than one month has elapsed since the end of the period under regulation 13(4) for the provision of information;
    (b) 	where payment of benefit or a reduction has been suspended in part under regulation 11 or regulation 13.”

19.	Regulation 14(2)(a) has since been amended so that it is not necessary to wait for an additional month before terminating entitlement on the ground that information has not been provided within the time allowed under regulation 13(4).  Indeed, since it is arguable that a person cannot “fail” to comply with an “information requirement” until the time allowed under regulation 13(4) has elapsed, regulation 14)(2)(a) may have ceased to be necessary at all.  (The language of regulation 14(2)(b) is clumsy but at least that subparagraph clearly has a purpose.)

Comments on the legislation

20.	The reference in regulation 14 to both regulation 11 and regulation 13 echoes the reference in paragraph 15 of Schedule 7 to the 2000 Act to both paragraph 13 and paragraph 14.  In enacting the primary legislation, Parliament clearly had two wholly different situations in mind.  

21.	The 2001 Regulations make adequate, albeit complicated, provision for the first of those situations.  This is where a local authority considers that there may be a question as to the claimant’s continued entitlement to benefit and perhaps also as to his or her entitlement in the past.  In those circumstances, payments may be suspended under regulation 11(1) and (2)(a) while investigations are carried out.  When the investigations have been concluded, the local authority must either restore the payments under regulation 12 or else revise or supersede the decision awarding benefit.  If, as part of the investigation, the local authority asks the claimant for further information or evidence, the case falls within regulation 13(2)(a) and the claimant must be given the notice required by regulation 13(3) and in particular must be informed of the time within which the information must be provided under regulation 13(4)(a).  If the claimant then fails to provide the information within the time allowed under regulation 13(4)(a), the local authority may, instead of restoring the payments or revising or superseding the award on any other ground, terminate the award under regulation 14 with effect from the date of the suspension under regulation 11(1) and (2)(a).  Until regulation 14(2)(a) was amended and therefore at the time relevant to this appeal, a decision to terminate an award could not be made until a further month had elapsed after the end of the time allowed by regulation 13(4).

22.	I have used the term “termination” which appears in the heading of regulation 14.  The learned editors of CPAG’s Housing Benefit and Council Tax Legislation (19th edition, 2006/2007) seem to think that “termination” is a mechanism distinct from revision or supersession.  However, I respectfully agree with Mr Commissioner Jacobs’ recent decision in CH/402/2007, in which he has held that regulation 14 does two things.  First, it prescribes a circumstance in which entitlement ceases, making supersession possible when the prescribed circumstance arises, on the ground that there has been a material change of circumstances.  Secondly it prescribes the date from which a supersession on the ground of such a material change of circumstances is to be effective.  It seems to me that the reason there is a separate enabling provision in paragraph 15 of Schedule 7 to the Act is that it was thought right to make it clear in primary legislation that regulations could provide for what is in effect a penalty for failing to provide information which takes effect even if the information is subsequently provided and it is clear that the claimant would otherwise have been entitled to benefit.

23.	Consideration of the mechanism that enables there to be a termination under regulation 14 following a suspension under regulation 11 does, however, throw a spotlight on what seems to me to be the very unsatisfactory drafting of regulation 13.  Ultimately, for reasons that will appear, this does not affect the outcome of the present case despite the local authority’s reliance on regulation 13(1), and I have therefore not invited the Secretary of State for Work and Pensions to intervene in these proceedings.  It may nonetheless be helpful for me to explain why I consider regulation 13 in its present form to be so unsatisfactory and, if the Secretary of State considers that there is any merit in my comments, he will be able to amend the legislation.

24.	First, it is very odd that paragraphs (2) to (4) of regulation 13, which clearly apply where there has been a suspension under regulation 11(1) and (2)(a) just as much as where there is a suspension under regulation 13(1), should be in the middle of regulation 13.  This is likely to cause confusion.  Secondly, it seems unlikely that “the requirements of this regulation” mentioned in regulation 13(3) extend beyond the requirements of regulation 13(4) and it is odd that there is no duty to warn the claimant of the possible consequences of failing to comply with those requirements.

25.	Thirdly, and most importantly, there seems to me to be a curious flaw in regulation 13(2) and, in particular, in subparagraph (c).  It will be recalled that, in relation to council tax benefit, an “information requirement” is defined in the 2000 Act as “a requirement made in pursuance of regulations under section 6(1)(hh) of the Administration Act”.  Section 6(1)(hh) of the Administration Act was inserted by paragraph 21(2) of Schedule 7 to the 2000 Act and is in similar terms to section 6(1)(h), save that it refers to awards rather than claims.  It was presumably thought necessary because paragraph 2 of Schedule 7 to the 2000 Act makes it plain that a claim ceases to subsist once an award is made.  Regulation 63 of the 1992 Regulations was originally made under section 6(1)(h) of the Social Security Administration Act 1992 but refers to an “award” as well as a “claim”.  It requires “a person who has made a claim or a person to whom council tax has been awarded” to provide certain information “within four weeks of being required to do so or such longer period as the relevant authority may consider reasonable” (see now regulation 72 of the 2006 Regulations).  It seems to me that the draftsman of the 2000 Act probably expected that the power to make regulations under the newly inserted section 6(1)(hh) of the Administration Act would be exercised either by way of a provision treating regulation 63 as having been made under the section 6(1)(hh) or else by way of a provision replacing regulation 63 in so far as it applied to awards rather than claims.  Instead, the only purported exercise of the power appears to have been in regulation 13(2) to (4) of the 2001 Regulations.  It is true that regulation 13(2)(c) appears to assume that regulation 63 of the 1992 Regulations remained valid insofar as it referred to awards, notwithstanding the coming into force of the 2000 Act, but it also appears to exercise the power given by section 6(1)(hh) only in relation to a person who has already failed to comply with regulation 63.  On one construction, it would therefore appear that there is a breach of an “information requirement” justifying suspension under regulation 13(1) only if there has already been a failure to comply with two requests for information – one under regulation 63 of the 1992 regulations and one under regulation 13(4)(a) of the 2001 Regulations.  I doubt that that was what was what was envisaged by Parliament when enacting the primary legislation.

26.	The second of the two situations that I mentioned earlier as the ones that I presume were envisaged by Parliament is where a local authority has no particular doubt, or only a weak doubt, about the claimant’s entitlement to council tax benefit but, as a matter of good administration, wishes the claimant to provide information or evidence in order, in effect, to update the information and evidence provided on the original claim and check its accuracy.  Parliament seems to have expected that there would be no suspension of payment while that information was awaited but, if it was not forthcoming within the time allowed, there would then be a suspension and, if the information was still not forthcoming, there would eventually be a termination of entitlement.  

27.	It seems to me that the draftsman of the Regulations became confused.  As he or she was drafting for the first time regulations to be made under sections 5(1)(hh) and 6(1)(hh) of the Administration Act, it is odd that regulation 13(1) includes a reference to those enabling powers rather than to the provision made under them and that the relationship between regulation 13(2) to (4) of those Regulations and regulation 63 of the 1992 Regulations was not made clearer.  It is possible that what he or she intended was that regulation 63 of the 1992 Regulations should be treated as made under section 6(1)(hh) of the Administration Act so that suspension under regulation 13(1) could follow a failure to provide information in compliance with that regulation and that the duty arising under section 13(3) of the 2001 Regulations would arise simply in respect of a person to whom payments had been suspended under regulation 13(1).  Whether it is possible to read the legislation in that way, I need not decide.  I suggest that the Secretary of State consider redrafting regulation 13 (and perhaps regulation 14) and that relevant regulations made under sections 5(1)(hh) and 6(1)(hh) of the Administration Act should be expressly identified.

28.	Whatever the defects in the drafting of regulation 13, a number of points about the scope of that regulation clearly emerge from any consideration of the legislation.  First, there can be no suspension under regulation 13(1) unless the claimant has failed to comply with at least one request for information.  Secondly, a failure to provide information following a suspension under regulation 13 may justify the drawing of inferences against the claimant that may in turn justify the revision or supersession of the award on grounds other than that provided by regulation 14.  It seems to me that the words “or such earlier date on which entitlement to benefit ceases” in regulation 14(1), which are arguably surplusage, must envisage there being such alternative grounds for revision or superesession.  Thirdly, it is obvious that, where regulation 13(5) requires payments to be restored, there can be no termination under regulation 14(1).  

29.	There are some equally obvious points that can be made about regulation 14 itself.  First, there can be no termination under regulation 14 unless (a) there has been a suspension of benefit, (b) the claimant has been informed (probably no earlier than the beginning of the period of suspension) that information is required within a month or some greater period, and (c) the month or greater period has elapsed (and, until the amendment of regulation 14(2)(a), so has an additional month).  

30.	Secondly, a termination under regulation 14 cannot be effective in respect of any period before the date of suspension.  The facts of this case show that this can be overlooked or the implications are sometimes not fully understood.  Suspension under regulation 11 or 13 is concerned only with payment and does not affect entitlement, which is why there is no right of appeal against a suspension (see regulation 16 of, and paragraph 5 of the Schedule to, the 2001 Regulations).  Nor can a suspension involve the recovery of payments, or reductions of liability, that have already been made.  A suspension preserves the status quo and is the temporary cessation of payments or reductions in liability until a decision in respect of which there is a right of appeal is made in respect of entitlement.  Therefore, the reference in regulation 14 to “the date on which the payments or reduction were so suspended” can only be to the date on which the suspension decision was actually made.  The only situation in which suspension can affect the payment of benefit due before the date the suspension is made is where arrears have accumulated before the date of suspension and payment of the arrears is suspended.  Even then, entitlement may be terminated under regulation 14 only from the date of the suspension unless some other ground of revision or supersession is identified in respect of the arrears. 

31.	I understand that, in practice, a local authority making an award of indefinite duration often makes an adjustment to the claimant’s council tax account for the current financial year reflecting an assumption that entitlement to council tax benefit will continue for the remainder of the year.  However, such an adjustment cannot itself be regarded as a payment of council tax benefit in advance.  It would be inappropriate to make such a payment since there is no certainty that the award will not be revised or superseded.  The legislation plainly contemplates that periodical payments of council tax benefit will be made in much the same way as periodical payments of housing benefit and it seems to me that it only works if the initial adjustment is regarded as the paper exercise it plainly is and if the reduction of council tax liability takes effect as a payment of council tax benefit only as each week passes while the award remains in force and has not been suspended.  Any more literal approach would make it impossible to suspend payments when an adjustment had already been made to the council tax account.

The scope of this appeal

32.	I do not accept the claimant’s submission that the tribunal was not entitled to treat the appeal before it as being an appeal against the decision of 25 June 2005 when it had been brought against the decision of 2 February 2005.  Subject to giving the parties a proper opportunity of dealing with any new points, a tribunal is always entitled to treat an appeal against one decision as being against another decision that was made before the appeal was lodged if it appears desirable to do so in the interests of justice.  Indeed, on the tribunal’s finding that the decision of 2 February 2005 had already been revised by the local authority, it was necessary for the tribunal to treat the appeal as being against the decision of 25 June 2005 if the claimant was to receive any payment as a result of the appeal.  That meant that the tribunal had to consider the effect of each of the decisions of 2 February 2005, 7 April 2005 and 25 June 2005.

The decision of 2 February 2005

33.	Quite how a local authority comes to write a letter like that dated 2 February 2005 I do not know.  The local authority has never sought to defend the terms in which it was written.  Instead, it argued before the tribunal that it had been a suspension of payment under regulation 13 of the 2001 Regulations.

34.	The tribunal was critical of the local authority for not keeping written records of decisions made and relying only on the letters sent out as evidence of the decisions.  I do not agree with the criticism as it was expressed.  It is perfectly satisfactory for a local authority to rely on the letters sent out as evidence of the decisions, because there is no excuse for such letters not accurately reflecting the decisions.  A claimant cannot always be expected properly to challenge a decision of which he or she has not been fully informed and it is usually important to know what the claimant was told at the time in order to understand the terms of a challenge.  It may, of course, sometimes be necessary to treat a decision as though it had been in different terms from those in which it was actually written, but that is a separate issue.  Moreover, a tribunal is, of course, entitled to give a decision in different terms from that under appeal, so that the ultimate issue for the tribunal is usually what decision should have been given rather than what decision was actually given.  On the other hand, it seems to me that the real point being made by the tribunal was that the local authority was not entitled to suggest that the decision had been in terms different from the letter sent to the claimant’s husband unless it produced a copy of the original decision, which would have implied an admission that the letter sent to the claimant’s husband had been inaccurate.  In other words, on the available evidence, the local authority was entitled to suggest that the decision should have been in the terms set out in its submission; it was not entitled to suggest that it had in fact been in those terms.

35.	Like the tribunal, I do not accept the local authority’s submission that it was entitled to suspend payments on 2 February 2005 under regulation 13.  The claimant had not, at that stage, failed to provide any information.  I suspect that the “Government decision” mentioned in the later telephone conversation was guidance from the Department for Work and Pensions in the form of the Verification Framework, said by the local authority in its submission to the tribunal to require local authorities to carry out “a percentage of home visits”.  Ultimately, a local government officer cannot insist on being admitted to premises for the purpose of investigating a claim for benefit but a refusal to allow a visit to take place may raise questions as to whether the claimant actually has any interest in the premises such as is required before housing benefit or council tax benefit can be awarded and it may raise other questions as well.  For instance, a person who claims to be unemployed but to be unable to arrange a time to be visited at home during normal working hours might be suspected of being out at work.  However, a refusal to allow a local government officer to visit premises is not a ground for suspending payment under regulation 13 or terminating entitlement under regulation 14.  Only a failure to respond to a specific request for information justifies suspension or termination under those provisions provision.  

36.	What the local authority might have considered doing on 2 February 2005 was suspending benefit under regulation 11(1) and (2)(a) and, indeed, the language of the letter dated 7 January 2005 threatening suspension, suggests that it was regulation 11 that the local authority had had in mind.  However, suspension under regulation 11(1) and (2)(a) requires that a local authority consider that there is an issue as to the claimant’s entitlement to benefit and suspension implies that the local authority will be considering the issue further and carrying out any necessary investigations.

37.	The tribunal did not refer to regulation 11(1) and (2)(a) but it was unnecessary for it to do so if, as it found, the decision of 2 February 2005 was not in fact a suspension at all.  It is difficult to see how the tribunal could have reached any other conclusion on the evidence before it.   The tribunal concentrated on the terms of the decision of 2 February 2005, which purported to claw back “any overpayment” and was plainly inconsistent with the decision being a mere suspension.  What seems to me to be even more important is that the decision was plainly intended to be final, subject to revision should the claimant make any further submission within a month.  A suspension is a temporary decision while investigations are being carried out or information is awaited.  Here, the local authority was not contemplating any further investigations on 2 February 2005 and there was no outstanding request for information.  The local authority has not satisfied me that the tribunal erred in finding that there had been no suspension on 2 February 2005.  It has not argued before the tribunal or before me that there were grounds for revision or supersession of the existing award on 2 February 2005.

The decision of 7 April 2005

38.	The tribunal, having found that the decision of 2 February 2005 terminated the award of benefit, then found as a fact that that decision had been revised on 7 April 2005 and that entitlement to benefit had been reinstated.  It did so on the basis that “[t]here could not be a postal review of a terminated claim” so that it was implicit in the decision to carry out such a “review” that the termination had been revised.  In my judgment the real question was whether there could be a suspension of a terminated award, to which the answer is also “no”.  On the facts of this case, it seems to me that the tribunal was entitled to find that the local authority had implicitly revised the decision of 2 February 2005 when it decided to investigate the claimant’s case further without requiring a new claim, although that may not have been the only analysis open to the tribunal.  Ultimately, however, the point is not of importance in this case.

39.	The tribunal did not explicitly consider whether the decision of 7 April 2005 should be treated as having suspended payment of council tax benefit, including the arrears due as a result of the revision of the decision of 2 February 2005.  It is perhaps implicit in its finding that entitlement was subsequently terminated under regulation 14, that it found that there had been a suspension.  There obviously could not have been a suspension on 7 April 2005 under regulation 13(1), because there still had not been a failure to comply with a request for information, but a request was now made on 7 April 2005 itself and it seems to me that there were grounds for suspending entitlement under regulation 11(1) and (2)(a).  Although the decision of 7 April 2005 did not mention suspension, it could be treated as a suspension if it was fair to both parties to do so.  The claimant knew that benefit was not being paid but that now the local authority was actively looking at his case and was waiting for him to complete the request for information that the tribunal found he had received.  The word “suspension” may refer to a decision to suspend or the continuing state of affairs after such a decision has been made and it may not be unfair to treat a decision as a suspension if in substance the resulting state of affairs has the qualities of a suspension in that it was intended to last only while investigations were carried out or information was awaited.  On the facts of the present case, as found by the tribunal, the tribunal would have been perfectly entitled to find that there had been a suspension of payment on 7 April 2005 and I will assume in the local authority’s favour that it did so.

The decision of 25 June 2005

40.	Assuming that there was a suspension on 7 April 2005, the question arises whether the tribunal erred in upholding the local authority’s decision to terminate entitlement on 25 June 2005 under regulation 14 of the 2001 Regulations.  This decision did at least refer to regulation 14 in terms, although the reference to the form sent on 7 April 2005 being part of a “procedure … being carried out on all claims as directed by the Government in new benefit regulations that were introduced in April 2004” was presumably a reference to it having been issued in accordance with guidance issued in the light of regulations abolishing benefit periods.  Had the local authority considered the terms of regulation 13 and 14 properly, it would not have made the decision it did and it might have written the letter of 7 April 2005 in different terms.  In my judgment, the tribunal clearly erred in two respects when it upheld the local authority’s decision.

41.	First, if termination was justified at all, it could be effective only from the date of the suspension, unless there were other grounds for revising or superseding the award made in respect of the period from 12 July 2004.  See paragraphs 29 to 31 above.  The local authority’s decision did not in fact state the date from which it was effective.  The tribunal decided that the termination was effective from 12 July 2004.  However, the earliest date from which a termination under regulation 14 could have been effective in this case was 7 April 2005.and so, in the absence of any other ground for revision or supersession, the award from 12 July 2004 to 6 April 2005 should have been left in force.

42.	Secondly, entitlement cannot be terminated under regulation 14 until the period mentioned in regulation 13(4) has elapsed and, under regulation 13(3), a local authority must give a claimant notice of that period.  There was no evidence before the tribunal that any such notice had been given.  It certainly did not appear in the letter dated 7 April 2005 itself.  The local authority has now provided me with a copy of the form that would have been enclosed with that letter.   It tells a claimant to “send it back as soon as you can or your benefit may stop”.  No specific period within which the form must be returned is mentioned.  The form seems designed to be used as a routine request for information before there is any suspension of benefit.  Payment had already stopped in the claimant’s case and the form was not clear that entitlement, rather than just payment might be terminated.  

43.	It is unnecessary for me to consider whether there are cases where a failure to give notice under regulation 13(3) is not fatal to a termination under regulation 14.  The requirement that a claimant be given a specified period within which to provide information is obviously an important part of the scheme.  Regulation 14 provides what is, in effect, a procedural penalty as it enables a local authority to terminate entitlement for a failure to provide information, even if the claimant subsequently provides the information and it reveals that he or she would otherwise have been entitled to benefit.  This procedural penalty is therefore only to be imposed in circumstances where the claimant has been given a firm deadline for providing the information and has been subjected to the pressure of suspension.  It is very easy for a local authority to comply with the requirement to give proper notice of the length of the period within which information must be provided.  In those circumstances, even if a local authority’s failure to comply with regulation 13(3) is not always fatal to a subsequent termination under regulation 14, cases where the failure can properly be overlooked will be very rare.  The tribunal did not consider whether the local authority in this case had complied with its duty under regulation 13(3)..

Conclusion

44.	The tribunal’s decision must be set aside but I can substitute my own decision.  I do not consider that the failure to give the claimant notice of a period within which the form sent on 7 April 2005 had to be returned was unimportant in this case, particularly as the true legal position regarding the current status of the award of benefit had not been correctly represented to the claimant by the local authority and the local authority could perfectly well have specified the period within which the form should be returned.  Accordingly, I am satisfied that the claimant did not cease to be entitled to council tax benefit by virtue of regulation 14 of the 2001 Regulations.  The local authority has not argued on this appeal that there are other grounds for revising or superseding the award of council tax benefit.

45.	The claimant’s appeal must therefore be allowed.  The consequence is that arrears of benefit from 12 July 2004 are due to the claimant.

46.	However, I wish to make it clear that this does not preclude the local authority from now revising or superseding the award of benefit on grounds other than regulation 14 of the 2001 Regulations, if it has the evidence upon which to do so.  It is even open to the local authority to suspend the payment of the arrears due under my decision while it investigates the case further, although it will ultimately be obliged to pay those arrears if it cannot revise or supersede the award on grounds other than regulation 14.  Local authorities have ample powers adequately to police claims and regulation 14 is an important part of their arsenal.  They are entitled to expect co-operation from claimants in receipt of public funds.  Nonetheless, they cannot rely on regulation 14 without following the correct procedures and they cannot rely on regulation 14 to terminate entitlement in respect of any period before payment has been suspended.  It is to be hoped that the Secretary of State will make new regulations to clarify the scope of local authorities’ powers to ask for information and to suspend payment for a failure to provide it.

	(signed on the original)	MARK ROWLAND
		Commissioner
21 September 2007