CH 2198 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Hearing and Decision

1. Although the application to the chairman was made late and not accepted, I accept the application as I consider that there are special reasons for doing so, relating to the delay caused by seeking advice. I grant leave to appeal. In accordance with the provisions of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations 1999 I treat this application as an appeal. The parties have each agreed to this course of action.
 
2. This appeal by the claimant succeeds. In accordance with the provisions of paragraph 8(5) of Schedule 7 to the Child Support Pensions and Social Security Act 2000 I set aside the decision of the Fox Court (London) tribunal of 22nd January 20068 (reference 242/07/11937). I refer the matter to a completely differently constituted tribunal for a fresh hearing and decision in accordance with the directions given below.

3. I would have been prepared to make my own findings of fact and substitute my own decision for that made by the tribunal, but the claimant wishes to have the opportunity to obtain further expert advice and representation, and it is not clear that all of the basic facts are agreed between the parties. The new tribunal must of course consider the matter totally afresh and make its own findings of fact and decision.

4. I held an oral hearing of this application on 16th November 2008. The claimant attended in person but was not represented. The housing authority (“the authority”) was represented by Mr Thomas, senior benefits policy officer.

Background and Procedure

5. The claimant is a woman who was born on 15th October 1950 and at all times relevant to this decision appears to have been a single person. From about 1993 she lived with her father in the relevant property, which has always been rented from a housing association. After her father died in 2000 she became the tenant. She worked variously as a secretary, a PA, and in sales, and also had a financial inheritance from her father and, I believe access to a trust fund. There had never previously been any difficulty in paying the rent but there came a time when she had financial problems, partly due to the non repayment to her of a loan of £30,000 that she had made. She had to borrow money for a while and rent arrears accrued. She stated that had never previously claimed benefit “of any kind”. She told me that she did not consider that she was entitled to housing benefit or other benefits because she did not have the necessary contribution record. She said (as she had also told the tribunal) that she had discussed this informally but separately with two people who worked for the CAB, and that their understanding was the same as hers. 

6. The housing association landlord took possession proceedings against the claimant. That matter came to court on 27th June 2007 and the judge hearing the case advised the claimant to apply for various benefits and adjourned the proceedings. The claimant told me that she telephoned an advice service and arranged an appointment for 10th July 2007. Following the advice given, she went to the Jobcentre and arranged to claim JSA and went to the authority’s one stop shop and arranged to claim housing and council tax benefit. She believed that these visits were on 11th and/or 12th July. In fact all of these claims have been treated as having been made on 13th July 2007.

7. On 24th July 2007 the Secretary of State awarded JSA as from 13th July 2007 and I am not concerned with that claim. On 9th August 2007 the authority awarded both housing benefit and council tax benefit as from 16th July 2007. On 13th September 2007 the authority refused the claimant’s request that the award(s) be backdated. There was an absolute time limit of 52 weeks on backdating, and for the rest of the period the authority decided that the claimant had not shown good cause for the delay in claiming.

8. The claimant appealed to the tribunal against the decision(s) of the authority not to backdate. The tribunal considered the matter on 22nd January 2008 and confirmed the decision(s) of the authority. On 2nd June 2008 the District Chairman of the tribunal refused to accept the claimant’s late application for leave to appeal to the Commissioner against the decision of the tribunal. The claimant renewed her application to the Commissioner and on 1st August 2008 I directed that there be an oral hearing of the application to the Commissioner. The authority opposes the appeal and supports the decision of the tribunal. 

The Relevant Law 

9. Regulation 83(12) of the Housing Benefit Regulations 2006 provides as follows:

83(12) Where the claimant makes a claim in respect of a past period (“a claim to 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.

There is an equivalent provision in regulation 69(14) of the Council Tax Benefit Regulations 2006.

10. The regulations provide no further assistance on what is to be regarded as “good cause”. In relation to other social security legislation a Tribunal of Commissioners held in R(S) 2/63 that good cause is:

“ … some fact which, having regard to all the circumstances … would probably have caused a reasonable person of his age and experience to act (or fail to act) as the claimant did”.

This is often cited but, it seems to me, says very little in reality. Essentially, whether good cause exists is a question of fact (as indicated by the Court of Appeal in Chief Adjudication Officer -v- Upton [1997] 2 CLY 4668; see also paragraph 4 of CH/2659/2002).

11. Both parties in the present case have cited decisions by Commissioners and various guides to the legislation and have perhaps fallen into the trap of wrongly regarding decisions by Commissioner on particular sets of facts as somehow dictating the decision to be made in other cases in which it is thought that there are similar facts (on this, see the decision of the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44; R(DLA)7/03; [2203] 4 All ER 162). However, that is to misunderstand the nature of “good cause” and/or the meaning of “reasonable”. The duty of the tribunal is to establish and take account of all the relevant basic or background facts, and then form a view as to whether the matter comes within the description in the regulations.

The Tribunal’s Decision

12. The decision of the tribunal seems to be to have been based on four principal considerations. First, it did not accept that the claimant had in fact received the advice from the CAB people that she said she had received. This was because she had not mentioned this until she appealed to the tribunal and because it was unlikely that she had been given such incorrect advice. The new tribunal will have to reach its own view of this. Unfortunately, it is my own recent experience that incorrect benefit advice has been given to actual and potential claimants by (amongst others) DWP and HMRC staff, by social workers, by local authority housing benefit staff and by heath service professionals. Indeed, if mistakes were not made by the relevant professionals, much of the caseload of the tribunals and Commissioners would disappear.

13. Second, the tribunal was of the view that an intelligent person like the claimant should have thought to contact the local authority itself as the body administering housing benefit. The claimant argues that she had no reason to do this if she believed the advice that she had been given that she would not be entitled to benefit. The new tribunal will have to form its own view on this question.

14. Third, that having been given the advice by the judge, it then took 16 days before the claims were actually made. Much has been made of this period, but it seems to me that if the previous 50 weeks delay was justified (on which I express no view), then it would be unreasonable to find against the claimant on he basis of the tail end of the period of delay while, under threat of repossession and in the middle of a financial crisis and possession proceedings, she was seeking advice from an advice agency.

15. Fourth, and the issue that causes me particular concern in this case, the chairman of the tribunal stated in its Decision Notice: “I was bound by the decision in CH/0342/2003 and I had to find continuous good cause to allow the Appeal”. Certainly the second point is correct, but there is an ambiguity in what the chairman meant by saying that he was “bound” by CH/0342?2003, which is a decision by a Commissioner on appeal from a tribunal in a case also involving good cause for delay in claiming housing benefit.

16. In that case the Commissioner said (in paragraphs 8 and 9):

“On the tribunal’s findings of fact, it may be understandable why the claimant failed to claim on time. However, that is not the test. The test is how a reasonable person would have acted. The facts as found would not have prevented a reasonable person from claiming. On the evidence before it there was only one decision open to it in law. That was to confirm the local authority’s decision that was under appeal”.

17. I do not have before me the tribunal’s statement of reasons in that case, so I do not comment on the final result, but with all respect to the Commissioner, the test is not “how a reasonable person would have acted”. The test in the regulations is whether the claimant had continuous good cause. Certainly that includes consideration of whether the claimant acted reasonably, but the tribunal in the case before me might have been misled into thinking that it was bound in law to have found that the claimant in the present case did not have good cause.

Conclusion

18. For the above reasons this appeal by the claimant succeeds to the extent indicated above. I remind the parties and the new tribunal that the issue before the tribunal is not whether the claimant is entitled to benefit. The issue is the date from which the claim should be treated as having been made. If appropriate the authority will have to make the necessary enquiries as to entitlement during the previous period.

H. Levenson
Commissioner

17th September 2008