[2008] UKSSCSC CH_2555_2007 (05 February 2008)
CH 2555 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	The claimant and appellant (“G”) is appealing with my permission against the decisions of the Wolverhampton tribunal on two appeals heard together on 24 04 2007 under reference 053 06 02473.

2	I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside.  I refer the appeals to a new tribunal to reconsider and retake both decisions as directed below.

3	DIRECTIONS FOR THE NEW HEARING 

A	The rehearing will be at an oral hearing. It is to be a rehearing of both 	appeals either concurrently or consecutively, as the chairman shall direct. It is not 	to be relisted, subject to a direction by a chairman, until at least six weeks after 	the service by the Council of the new submission directed below on both the 	tribunal and the appellant.
B	The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.  
C	The Council is directed to produce a full new submission on the decisions under appeal for the tribunal and to serve it on both the tribunal and the appellant within one month of the issue of this decision. That submission is to include: a full submission about the operative decisions relevant to these appeals taken by the Council that deals with the difficulties discussed in this decision; a chronology of all relevant decisions, actions and correspondence relevant to both decisions; a bundle of relevant correspondence in date order; and a full submission or skeleton argument detailing the powers on which the Council relies in making the decisions it has made and on which it continues to seek to rely in the light of this decision and the other Commissioners’ decisions to which attention is drawn in this decision. 
D	The claimant does not have a representative, and is advised to seek the help of a Citizens Advice Bureau, welfare rights office, solicitor or other expert adviser with the rehearing of this appeal.
E	If the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue to the appellant of the new submission from the Council directed by this decision. 

These directions are subject to any later direction by a chairman. 
     	
REASONS FOR THE DECISION 

The decisions said to be under appeal
4	G is appealing against two decisions taken by decision makers for Wolverhampton City Council on the same day, 26 10 2006. The way in which these decisions were taken and the appeals from them heard, together with questions about the validity of those decisions, means that my decision must apply equally to the two decisions. I therefore give a single decision about both issues, and make a single formal decision to set aside the tribunal decision on both decisions. I also direct that they continue to be heard together. 

5	The first decision (or perhaps the second – there is no obvious order of decision, and I discuss them in the order in which they appear in the papers) was that G was entitled to a reduced amount of council tax benefit from 6 09 2003 to the date of the decision. This was because the Council had belatedly noticed and accepted that G was claiming council tax benefit as the sole adult resident of her house.  She had apparently previously been awarded council tax benefit for the full amount of council tax payable without a single person discount. I have G’s claim form before me. She made the claim as a single parent. It is not clear why she was not awarded council tax benefit on the lower basis from the beginning of her claim. The only reasonable conclusions I draw from the papers are either that the Council had reviewed her position and identified its mistake or that the Council thought someone else was living with G but now accept that this was not so at any timed from 2003. It took the formal decision on 26 10 2006 to confirm the point. In so doing, it confirmed both that G was resident at her home throughout the period of claim and also that she was the sole adult resident at that address. 

6	The letter reducing G’s benefit stated the new amount of council tax benefit taking into account “a change in your circumstances.” It is clear from that letter that the award was regarded as still continuing when that letter was written. 

7	On the same day as the central benefits team of Wolverhampton City Council wrote to G to notify her of the new decision reducing her benefit, the same central benefits team also wrote to G from the same official address to her address under the same file reference cancelling her council tax benefit from 28 05 2006. Both letters were signed as coming from the same official, the Head of Benefits of the Council. 

8	The letter cancelling G’s benefit states that the “cancel date” for council tax benefit was 28 05 2006. The reason given for the cancellation was that “In-claim postal check has not been returned”.  

The 22 10 2006 decision reducing entitlement to benefit 
9	I can see nothing to indicate why the Council formed the view on 22 10 2006 that there had been a change of circumstances with regard to G’s claim. There is no evidence on file that there was any change of circumstances on the point of single residence. It is more probable that an official noted that there was a notional over-award of benefit to G. So the true reason for that decision was probably not a change of circumstances but a correction of an official error in failing properly to identify unchanged circumstances. 

10	Little notice was taken by the Council or the tribunal of G’s appeal from this decision. They seem to have taken the view that the decision was clearly correct and there was in practical terms nothing for G to appeal against. But, if it is correct, then its implications are directly relevant to and form part of the circumstances to be taken into account with regard to the other decision taken that day. 

11	At paragraph 11 of his reasons for the tribunal decision about the other Council decision the chairman stated:

	“My task is therefore to consider whether the Local Authority’s request for a home 	visit in 2006 was reasonable and within their powers, and whether it was reasonable 	for G to refuse such a visit. I bear in mind that a home visit will assist the Local 	Authority to come to conclusions in ways that are not available through 	correspondence. Most importantly such a visit will enable an officer of the Local 	Authority to establish that the claimant does indeed reside at the relevant address, 	and will also assist a Local Authority in reaching conclusions as to whether any other 	relevant person resides at that address…”
	
Even if it is right about the “task”, it entirely misses the significance of the decision taken by the Council on the same day as that decision that it accepted that G was living at her house and that she was the only person living at her house. The “most importantly” part of the chairman’s reasoning is plainly irrelevant to these appeals. As the tribunal did not take this into account, and failed also to note other inconsistencies in the case made to it by the Council that I note below, I consider its decision inadequate and set it aside. I also consider that it erred in law for other reasons, and return to that. 

The decisions purporting to terminate benefit 
12	The cancellation decision of 22 10 2006 was an outcome decision that followed the result of an enquiry letter to G on 20 04 2006. The enquiry letter suggests that G had been previously paid jobseeker’s allowance (“JSA”) but that payment had ended. That was of course an important consideration for the Council. Assuming that the correspondence file before the tribunal is complete on this issue (and it is not on other issues), this letter is a delayed reply to a letter sent by G to the Council on 14 11 2005. G’s letter sets out in some detail G’s views about the way the Council’s officials had conducted their enquiries into her council tax benefit. In particular, it details a home visit to G’s house and three subsequent visits by G to the Council offices to sort out what she considered to be repeated duplicative requests for the same information. This she linked with a failure by the Council’s internal post systems to handle her replies properly and a repetition by officials of questions about her claim that she had already answered.  

13	The letter on 20 04 2006 deals only with the issue of JSA and her appeal to a tribunal about it. The writer understood that G had won her appeal, but notes that the Council had been told by the Department that there was no current award of, or claim for, JSA. I have attached a decision of Commissioner Rowland to this decision. His decision, about that JSA appeal, had not been made at the time of these decisions of the Council. Nor had it been made when the matter went to this tribunal. But it explains the problems about G’s claims for, and appeals about, JSA at those times. It also suggests that G was not fully aware of the position with regard to JSA. And it suggests that the Department also had not given the Council a full picture of what was happening on that appeal.  

14	G’s reply to the letter of 20 04 2006 was a complaint to the Chief Executive of the Council on 11 05 2006. This pointed out that the Council had sent G a “£0” council tax bill on 9 03 2006 (not in the papers) and that if the Council needed the further information it would not, in her view, have issued that bill in that form.

15	The next letter in the papers from the Council to G was a letter dated 22 05 2006 telling G that her “claim” had been suspended. I assume this means that her award was being suspended, as there was no outstanding claim on that date to be suspended. The letter It required her to provide details about the JSA and what income she then received. It told her to do this within 28 days of the date of the letter if she wanted her claim re-instated.  

16	On this occasion also, the papers suggest that the Council managed to send out two conflicting letters to G on the same date. For on the same date the Council also sent G a letter telling here that she was to be available for a home visit on 23 06 2006. That letter required her to have certain information available for the visiting officer and warned her that failure to keep the appointment might result in her benefit being cancelled. 

17	The issue of both letters on the same date obviously raises the question why one set of officials suspended her benefit and demanded that she produce papers by post by a set date while another set of officials (I assume it cannot have been done by the same official) demanded a home visit about exactly the same information after the threat in the first letter had expired. The inconsistent double request to the appellant on this point has never been explained. But the inconsistency must call into question the reasonableness of asking for a home visit on 23 06 2006 when it would not be needed if G complied with the other letter. 

18	Alternatively, it calls into question the Council’s evidence of the dates of these letters. 
I comment on the issue of the dates in this case, and the evidence about those dates produced to the tribunal, below. I have used the dates on file for the various letters in this summary of facts. The new tribunal may need to consider whether the dates on the council copy documents put in evidence are accurate, and should therefore not assume the accuracy of the dates in this summary. 
 
19	 On 24 05 2006 the Council sent G another letter – again said to be from the Head of Benefits. I am again relying on the Council’s evidence to the tribunal on this point. This stated that G’s council tax benefit had now been cancelled. The reason given was that “your benefit has been suspended”. The “cancel date” was 28 05 2006.  If that letter means what it says – and I have seen nothing in the papers questioning its validity - then the Council issued this letter without giving G a reasonable chance to reply to its letter of 22 05 2006 asking for further information. Nor did it give G a reasonable chance to respond to the request for a home visit. Nor did it give G a reasonable chance to ask the Council what it actually wanted her to do. But there is clear evidence that this letter was sent to, and received by, G because she responded explicitly to it in her letter receive by the Council on 6 06 2006. 

20	On 19 06 2006 G gave a considered response to “the” letter of 22 05 2006 which she stated was received on 12 06 2006. It is a reply to the letter about the home visit. She states that she will not be available for the home visit on that date as she has a prior engagement. She did not refuse a visit save on that date. She again pointed out that she had had a home visit, and had visited the Council offices, in the past few months. She also enclosed some correspondence with the Appeals Service about her JSA appeal. 

21	On 20 06 2006 the Council sent G another letter about her benefit. This refers to “the entitlement letter previously sent to you” but does not give a date for that letter. I think from context it seems to mean the letter of 24 05 2006. But if it does, then it wrongly describes the content of that letter. That is because this letter states that her benefit was suspended, and not cancelled, between the dates in that earlier letter. It again asks G to confirm her current income and for further details about her JSA appeal.  In doing so, it gives a new reason for suspending or terminating the claim, namely the need to establish G’s current income. G replied enclosing copies of various payslips and bank statements.  

22	On 17 07 2006 G received another reply from the Head of Benefits to her letter of complaint on 11 05 2006 to the Chief Executive. It makes no reference to the previous reply sent to G, although it was sent in the name of the same official. This letter apologises for the letter of 22 05 2006 about the home visit. It comments: “I have looked into this and discovered that letters are produced in advance but posted closer to the date of the visit. Thank you for bringing this to my attention, as a result we will change the process to avoid this happening in future.” It then states that G needs to reorganise the home visit and that unless she replies with that request the Council will be unable to continue with her claim. It also adds that “the visiting officer will endeavour to arrange a time that is convenient with you.” There is a failure to deal with the other letter of 22 05 2006 or the letter of 24 05 2006. 

23	G wrote to the Council again on 9 08 2006.  She refers to a letter from the Council of 9 08 2006 (not in the papers) and to the issue of a court summons to her demanding payment of the council tax. There is a copy of a summons issued on 4 08 2006 in the papers. It is for council tax from 1 04 23006 to 31 03 2007. It was returnable on 23 08 2006, but someone has written on it that it was suspended until 25 10 2006. That summons directly overlaps with the later part of the period of G’s entitlement to council tax benefit in issue in these appeals. The summons states that the Council has demanded the payment of the council tax for the full period. The file also contains the £0 bill for council tax for that year, and does not contain any later demand. When was that demand issued and on what authority? Was it the decision letter of 24 05 2006?   

24	The contradiction again appears when on 2 10 2006 G sought to appeal against the withdrawal of her council tax benefit. She was told on 9 10 2006 that she could not appeal as her benefit was only suspended and there was no decision against which she could appeal. That, of course, ignores the letter sent by the Council to G on 24 05 2006 and subsequent correspondence and, on the basis of G’s comments in the papers, enforcement action. The letter of 9 10 2006 set a deadline of 24 10 2006 for G to agree to a home visit. It did not say why the home visit was still needed. On 13 10 2006 G replied pointing out some of the inconsistencies in the Council’s treatment of her case. 

25	The results of this correspondence were the two inconsistent letters issues on 26 10 2006 which are the basis for these appeals.

The JSA appeal
26	I can add further details about the JSA position from our own files. G applied to the Social Security Commissioner on 18 11 2006 for permission to appeal against a decision of a tribunal on 15 02 2006 on a JSA decision. On 28 06 2007 Commissioner Rowland refused permission to appeal in CJSA 4196 2006. He did so in an extended decision that I am copying to the parties with to this decision. I copy it here because it goes a long way to explain some of the issues that were clearly causing both the Council and G some confusion. And it shows that G’s appeal about her entitlement to JSA was genuinely in issue until the date of issue of that decision by the Commissioner. It further shows that G was entitled to JSA following the decision of the tribunal but only for a short period, and that there was apparently an official failure to take action about G’s later claims and the continuation of G’s JSA award following that decision.  Commissioner Rowland expressly invited G to copy his decision to the Department. However, the decision had not been taken at the time the tribunal heard these appeals, so could not have been before it.  

27	Nonetheless, his decision suggests that the Department for Work and Pensions did not give the Council a full account of the status of G’s claims for JSA when the Council asked it for information. This may be because it had itself not decided its position on later JSA claims.  It is clear that G did win her appeal and was entitled to JSA as a result, at least for a short period. And she was right in telling the Council that. But the tribunal decision had limited effect. The Commissioner’s decision shows that, at least at the date of the decisions of the Council under appeal in this case, the question of G’s entitlement to JSA for weeks after the week in which the tribunal awarded her JSA was still undecided. Given the complexity of the questions involved, it is open for consideration whether G could reasonably be expected to tell the Council more than she had told them (including sending them copies of her correspondence with the tribunal) her JSA claims and appeal at the relevant time. If she had done so, was the Council reasonably asking for more? 

Problems with the letters
28	Before discussing the points of law raised by this correspondence, I must comment on the letters themselves and their evidential and legal value.

29	First, the tribunal was not provided with a full set of the letters between the Council and G about these two decisions. The papers before me are presented in somewhat random date order, which also does not help. But it is clear that there were other letters and actions from the Council about the termination of G’s council tax benefit that were not produced. For example, when was the demand for council tax made on which the court summons was issued? As a result, the evidence about the background to the Council’s termination of G’s benefit for failure to comply with their requests is incomplete. And so is the account of the decisions taken by the Council.

30	The evidence in the papers also raises serious questions about the validity of the dates given on several of the letters. The Council itself accepted that the date on one of the letters of 22 05 2006 was not a true date, in the sense that the Council accepted that it prepared the letter with no intention of issuing it on the date it was prepared. That must give rise to a number of issues of fact on which the Council has failed to give evidence. 

31	Notifications of decisions such as those to G operate from the date of notification. See regulation 2 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (“the Decisions and Appeals Regulations”). This is particularly important where a local authority is relying on non-compliance with regulation 72 of the Council Tax Benefit Regulations 2006, the basis for this Council’s actions. G was entitled to at least four weeks to comply with the Council’s information requirements from when she was required to do so. She was required to do so when she was notified of the requirement, not when the Council decided to generate that requirement. 

32	The importance of this can be illustrated by the facts of this appeal. The papers show the double requirement of 22 05 2006. If those requirements were sent out on 22 05 2006, then they could ask that G respond “within 4 weeks of being required to do so” or such longer period as is accepted as reasonable: regulation 72(1). The letter expressly states in standard wording that the requirement to provide the information is for a reply “within 28 days of the date of this letter”. But if, as the Council has itself accepted in evidence about some of its letters, the date of the letter is the date of its generation and not the later date of its notification to the claimant, then the letter fails to give the addressee the full period in which to reply set out in regulation 72. 

33	As a consequence, if a local authority follows the practice that Wolverhampton City Council followed in this case, then it must give evidence of the date of issue of letters and not merely dates on which those letters were generated. In this case the Council accepted that it did not issue the original letter about a home visit on the date stated on the letter in the papers. There was no direct evidence of the date on which it was notified. There should have been.  That brings into question the evidence of other dates in the official correspondence. The Council’s own evidence is that at least some of the dates are unreliable. This is relevant both to the question when the appellant was notified of various requests and to the reasonableness of the requests. In at least one of the above exchanges between G and the Council the dates on the letters suggested that letters crossed in the post. If the Council’s evidence is unreliable on dates, was that in fact so? For example, if G had provided all relevant information after the request letter was generated but before it was sent, then the information requirement in the letter was no longer reasonable.

34	There is a further issue about dates in this case. A local authority’s powers to suspend and terminate an award of council tax benefit depend on the proper procedures being followed, as Commissioner Rowland discussed in CH 2995 2006. That in turn requires that the local authority produce proper evidence to a tribunal of the dates on which its various actions and decisions were taken if its decisions are challenged. Failure to produce that evidence may mean that the local authority cannot show to the tribunal that it has complied with those conditions. And if it cannot do that, then its decisions to suspend and terminate awards may be set aside.

35	The letters in these appeals also raise yet again the problem of standard form letters that fail to use statutory language, fail adequately to explain to a council tax benefit beneficiary what is going on, and fail to comply with the statutory requirements under which the letters are issued. “Cancel” is not a term of council tax benefit law, and never has been. Perhaps that is why there appears to be some confusion among the Council’s officials about the effect of the letter of 24 05 2006. It must also be questioned whether these standard form letters meet the legislative requirements of the Council Tax Benefit Regulations and the Decisions and Appeals Regulations. That point can be made by reference to the texts of the two letters issued on 26 10 2006, at least in name, by the same person. One of the letters complies with the requirement that it notifies the right of appeal.  The other does not comply with those provisions. That requirement is in Schedule 7 to the Child Support, Pensions and Social Security Act 2000 as implemented by Regulation 76 of, and Schedule 8 to, the Council Tax Regulations 2006. The words used about notifying appeal rights are “shall” not “may”.   That official cannot say that he or she was not aware of the obligation to comply with the rules. And I can see no reason for the failure to comply in one of those letters when the other is well drafted to deal with the point. Why, then, should the defective letter be regarded as valid notification of a decision? 

The decisions actually under appeal 
36	I have set out the correspondence between the parties in far more detail that I would usually put in a decision. Commissioners have no jurisdiction over complaints about maladministration. But it is directly relevant to this case that a clear view be taken about the decisions actually made by the Council, the dates on which these decisions were actually notified, and the requests actually made and notified to G for further information. It is also necessary to explore the administrative background to consider what information the Council had asked for and received, and whether it acted within its powers in suspending and then cancelling the award of benefit to G. In this case the inconsistencies and contradictions in the way the Council handled G’s claim give rise to questions of direct relevance to G’s appeals to the tribunal. 

37	The first question to be addressed is that of identifying the decision on which the Council relies in revising or superseding G’s award of council tax benefit. Was it the decision of 24 05 2006 or the decision of 22 10 2006? That is relevant for three reasons. First, the Council must show on what grounds it was empowered to revise or supersede the previous award at the date of decision. Different reasons were given in the different decisions. Second, the Council’s decision is to be judged by reference to the circumstances at the date of decision. If that was in May 2006, then much of the subsequent correspondence between the parties is irrelevant. Third, it must be shown that G appealed against the decision. G attempted to appeal against the 24 05 2006 decision but had that attempt rebuffed. The tribunal may consider that in the circumstances she had done enough to warrant considering her appeal against that decision as a late appeal.

38	It is open to argument on the papers that the decision to “cancel” was, rightly or wrongly, taken on 24 05 2006 and not on 22 10 2006. If that is so, then the decision to terminate G’s benefit must be judged by the circumstances at that time. If the letter of 24 05 2006 was not in fact issued to G, or was issued on another date, or was wrongly issued by the Council, or has been revoked or superseded, or is invalid, then the Council have failed to explain this to G or show it to the tribunal. The Council must make a submission to the tribunal dealing with the point before the appeal comes back before it. If it makes no further submission, then on the Council’s own evidence to date I direct the tribunal that the operative decision is that of 24 05 2006 not 22 10 2006 unless it is shown that that decision is invalid.   

39	If that decision is the proper decision, then both decisions of 22 10 2006 must be wrong in the terms in which they are given as there is no extant entitlement to benefit to which they can relate. On that assumption, the tribunal then needs to consider if there were grounds on 24 05 2006 to revise or supersede the previous decision on entitlement to benefit from 23 05 2006 on the grounds given or any other grounds. 

40	Alternatively, the tribunal may find that the decision behind the letter of 24 05 2006 was not valid and that the operative decision was that on 22 10 2006. If so, then it should nonetheless take into account the evidence of what the Council asked G to do at the time, and what it told her and, if the correspondence from G is correct, its actions in also issuing a warrant on the basis of it, in considering the reasonableness of the subsequent actions of both the parties to these appeals.  

The grounds for superseding entitlement to benefit
41	On any basis, the Council’s decision ending benefit, whether that of 24 05 2006 or 22 10 2006, must be made within the Council’s powers. The tribunal must consider what reasons were given at the time of the operative decision, and whether those reasons are validly within the powers of the Council to revise or supersede entitlement to benefit. In doing so it can use its powers to correct any errors it finds to have been made by the Council if it is satisfied that the Council took action for which there are proper grounds in the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 and the matters are properly before it.

42	I draw the attention of the tribunal and the Council to CH 2995 2006. In that decision Commissioner Rowland, following an earlier decision of Commissioner Jacobs in CH 402 2007, discussed the powers of a local authority to “terminate” a decision. I respectfully entirely agree with, and follow, both decisions and I direct the tribunal to apply them in this appeal. I do not therefore need to repeat that careful analysis. In this case the tribunal must consider if the Council has shown that there are grounds on which to revise or supersede the award of council tax benefit, taking into account the full background to the appeals.

Is failure to allow a home visit enough? 
43	The Council sought at the previous tribunal hearing to justify its decision to terminate G’s benefit specifically and only because she refused a home visit. The tribunal recorded that the official appearing for Wolverhampton City Council:

	“helpfully conceded ... that the Local Authority had all the information they had 	requested eventually by post, and that the only matter in contention was the refusal 	of the home visit.”

The chairman then set out what he saw as the tribunal’s task as in paragraph 11 above. 

44	What power does the Council have to end council tax benefit when someone receiving benefit refuses a home visit? There is a thin line between requesting that an individual allow officials into his or her home to inspect it for improper use or for unnotified residents under threat of stopping council tax benefit if that visit is not allowed, and enforcing an inspection of premises without that person’s consent or that of anyone else using the house. The Council accepted in submissions to me that it had no power to enforce a home visit. It should perhaps go without saying that even if it was allowed a home visit it has no powers to search G’s home. It would need to ask others to do that for it. If it wishes to conduct surveillance of a beneficiary, or a third person, and specifically if it wished to conduct surveillance within the private home of an individual, then it can use its powers under the Regulation of Investigatory Powers Act 2000, provided that it was authorised under and complied with the requirements of that Act. Those powers ensure that the surveillance is compliant with the Human Rights Act 2000. By comparison, regulation 72 is a power applied only to claimants of, or beneficiaries of, council tax benefit. Any attempt to step round the 2000 Act provisions could raise issues about compliance with Article 8 of the European Convention on Human Rights. I add, to avoid any doubt, that the Council has not in this case undertaken any such invasion of privacy and disavows any intention to do so. 

45	In an ordinary case such as this, a local authority can only rely on the power it does have. This is the power now in regulation 72 of the Council Tax Regulations 2006. The Council relied on this, supporting its argument by reference to the decision of Commissioner Howell QC in CH 4390 and 4391 2003, as applied to the new provisions and policies now applying to council tax benefit. The key paragraph, 11 of that decision states:

	“In my judgment the tribunal chairman was justified in holding on the facts before 	her that the requirements imposed by the council in this case had been reasonable 	and within their powers and regulation 63, and it was the claimant and her husband 	that had been unreasonable in refusing to comply with them. It is well within the 	bounds of reasonableness for an authority or the Secretary of State to require 	evidence and information to substantiate or confirm a person’s entitlement to be 	given not only by completing the normal printed forms but also from time to time in 	the form of a signed statement given in response to direct questions from a council or 	departmental office at a home visit; supplemented if necessary by visual 	demonstration that the claimant is indeed continuing to occupy the property in a 	normal manner…”

Despite a search in the Commissioners’ databases of decisions, I can find no further authority of the courts or a Commissioner on the scope or exercise of that power. Commissioner Rowland had the factual situation of a home visit in mind in CH 2995 2006, but does not discuss regulation 72 or its predecessor. 

46	While I agree that some home visits are clearly a sensible step I must emphasise that, like all decisions of Commissioners, the decision in CH 2995 2006 needs to be read in the light of its background facts. In particular, it is to be noted that the primary refusal of the appellant in that case was that of refusing to sign a statement about the relevant facts. It is also clear that the Commissioner regarded that appeal to him by that appellant on those facts as a misuse of the appeal procedure and a gross overreaction by the appellants to the requests made of them. The decision under appeal was also a refusal to decide a claim. Further, once the facts were established the claim was allowed without officials entering the appellant’s home. That is a completely different situation to that here. I do not need to repeat the background of confusion and conflicting decisions and demands against which G was expected to act in this case. 

47	If the concession made for the Council before the tribunal was rightly made on the right decision, and it is based on a proper analysis of the powers to supersede, then the argument for the Council appears to be that it can revise or supersede G’s entitlement to council tax benefit simply because she did not agree to a home visit. That is too wide an interpretation of the Commissioner’s decision in CH 4390 2006. Nor is it justified by any provision in the Decisions and Appeals Regulations permitting revision or supersession. 

48	At the same time, the tribunal chairman’s view of his “task” is too narrow. The chairman defined the “task” in judicial review terms, not appeal terms. That misses the point. It may or may not be reasonable for a local authority to decide to conduct home visits in general terms as part of its exercise of the regulation 72 powers. I have already indicated that I agree with CH 4390 2003 on that point. If the requirement for a visit is challenged in an individual case, as here, the tribunal must go beyond general policy points into the evidence to see whether the requested visit was a reasonable information requirement in that case, and then whether any refusal to provide information left a local authority in a position where that authority could properly, on the facts as it knew them, establish grounds to supersede an award. As Commissioner Rowland emphasised in CH 2995 2006, a decision to stop someone’s council tax benefit must be justified by reference to a power to revise or supersede. That may arise as a result of the refusal of a recipient of council tax benefit to arrange a home visit. But it must be shown that the refusal of the home visit leads to that result. That requires a fuller examination of a particular case than this tribunal tasked itself to undertake. And, as in all decisions to take away a benefit, the burden of proof is on the local authority to establish that its decision was justified. It is not a burden on the individual to show that a home visit was not refused, or that it was reasonably refused. That will only arise when the local authority has established the probable presence of issues that show that a reasonable information requirement was not satisfied by the refusal of a visit. 

The operative date of the decision
49	Finally, I draw attention to the operative date of any suspension or supersession in this case. The letter of 24 05 2006 takes the “cancellation” back to 1 04 2004. The magistrates’ court warrant takes it back to 1 04 2006. But one of the letters of 22 05 2006 states that suspension was only occurring on the date of that letter. And, as noted above, it is not clear that the correct date of issue of that letter was 22 05 2006.  One of the letters of 26 10 2006 put the “cancel date” at 28 05 2006. The tribunal will have to decide which, if any, of those dates is the correct date from which any supersession can operate. See again CH 2005 2006. And see also CH 3076 2006 in which the Commissioner confirms that entitlement to council tax benefit is a weekly entitlement. Any decision to end the benefit cannot be backdated beyond the benefit week to which the powers under which the benefit is ended first apply.    

The tribunal’s task
50	The previous tribunal chairman stated the tribunal’s task in these appeals. It is appropriate to summarise the points above and direct the new tribunal on its task. 
  
51	Before the tribunal embarks on that task, the Council must produce a properly ordered submission dealing with the facts behind, and the law involved in, these appeals. This case screams out for both a chronology and an ordered chronological presentation of papers of the kind that are standard in court actions and hearings before other tribunals. Had that been done here, it would have brought out immediately the conflicting actions and decisions of the Council in handling G’s case. And it would allow a focus on one of the essential problems in this appeal, namely identifying when various actions actually occurred, and what decisions were operative when. It would also highlight gaps in the existing papers.  I make a formal direction to the Council about this at the head of this decision.

52	The tribunal’s task is then to identify the operative decision or decisions of the Council, and to consider whether the Council was or was not empowered to revise or supersede G’s council tax benefit in the light of the full facts. If it considers that this is so, then it must decide from what date the decision or decisions properly apply. 

									David Williams
									Commissioner											5 02 2008