PLH                                                                            Commissioner's File: CH 3691/07

	SOCIAL SECURITY ACTS 1992-2000
	
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Tribunal Case Ref:  	038/07/00695
Tribunal date:	14 May 2007
Reasons issued:	30 August 2007

     1.     	This appeal by the claimant must be allowed, as in my judgment the decision of the Leicester appeal tribunal on 14 May 2007 (Miss H A Sykes, chairman, sitting alone) was based on material misdirections as to the issues and burden of proof on the appeal then before it.  In consequence, the tribunal failed to make and record sufficiently clearly based findings to justify its conclusion that during the material period from 10 October 2005 onwards the claimant’s daughter was living as a non‑dependant adult in his household and in receipt of an income high enough to warrant the maximum deduction from his housing and council tax benefit being made.  I set the decision aside and as further consideration of the evidence and findings of fact are needed, refer the case in accordance with paragraph 8(5)(c), Schedule 7, Child Support, Pensions and Social Security Act 2000 to a fresh tribunal for redetermination.  
     2.     	This case arises out of a comprehensive decision letter issued by the Council to the claimant on 16 January 2007, superseding all previous award decisions relating to his housing and council tax benefit back to the very beginning of his claim on 6 September 2004, and substituting what amounted to a series of fresh decisions redetermining his entitlement for successive periods from that date and asserting that he had been overpaid under his previous awards.  For the periods from 10 October 2005 onwards, his entitlement was now sharply reduced by a deduction for his adult daughter as a “non-dependant” living with him, which on appeal to the tribunal he disputed.
     3.     	As recorded in the tribunal chairman’s statement of reasons issued to the parties on 30 August 2007 at pages 93 to 96, it is not in dispute that the original claim had been made on 19 October 2004 (the form itself is at pages 9 to 16) and was made in respect of the Council property of which the claimant became tenant in succession to his late wife on 6 September 2004, she having died in tragic circumstances.  In the form he entered the names of his 12-year old son and his daughter, at that time aged 21, as persons who were then living with him.  The ensuing award letter issued by the Council on 3 February 2005 (pages 27 to 36) showed that as his daughter was then under 25 and herself in receipt of an income-related benefit, the Council had (entirely correctly) made no deduction from the claimant’s benefit for her as an “adult non‑dependant”.  That remained the position in the further benefit award letters issued, apparently automatically and without further inquiry of the claimant himself, to reflect general changes in benefit levels for the two succeeding tax years beginning in April 2005 and April 2006:  pages 39 to 49.  
     4.     	In October 2006 the Council undertook a routine review of the claimant’s case and he was sent a form to fill in which he duly completed and returned on 25 October 2006, this time showing that only his son was currently living with him and not his daughter.  He failed however to comply with requests, in the form itself and specifically in a further letter the Council sent him in December, to provide details of when she had moved out and what her income had been up to that time.  Faced with this lack of response, and having ascertained from the benefit authorities that the daughter’s entitlement to means-tested benefit had come to an end on 10 October 2005, the Council without further ado issued the decision under appeal of 16 January 2007.  
     5.     	This as already noted purported to supersede and formally redetermine the claimant’s entitlement for the entire period of his claim back to 6 September 2004; but the only material change for the present purpose was that made for the periods from 10 October 2005 onwards, for which (for the first time) deductions were applied, on the basis that his daughter had been living with him as an “adult non‑dependant” at all times from that date and was still doing so at that of the decision itself.  Moreover the deductions imposed were the maximum possible, the Council determining without further inquiry that the claimant’s daughter must throughout this period have been working continuously and had been receiving a weekly income of £322 or more from 10 October 2005, increasing to £338 from 3 April 2006.  
     6.     	On that basis the decision letter also asserted that the claimant had been overpaid benefit and that certain amounts of housing and council tax benefit would be recouped, saying that further details would be given in another letter.  A further letter of the same date at pages 74 to 75 averred that the claimant had been overpaid housing benefit of £3,078.92 and council tax benefit of £534.15; though it also said the amount had not been finalised and might be recalculated if the claimant provided additional information.
     7.     	On 25 January 2007, the claimant attended for an interview at the Council’s premises with an officer of its Revenue and Benefits department, who helped him complete an appeal form.  He made clear that he wished to dispute the decisions of 16 January 2007 on the ground that his daughter was no longer living with him at any time for which a deduction had been applied, so he had not been overpaid benefit.  He said she had vacated the property in 2004 to go and live with her boyfriend; subsequently she went missing in 2005, and was later found by the police.  She had not contacted the claimant again until May 2006 and from that time had been living at another address elsewhere. The officer recorded that “I have advised [the claimant] to appeal the recoverability of the overpayment based on a number of factors” and the claimant did so, signing a declaration confirming the truth of the information recorded in the officer’s note:  pages 76 to 77.  
     8.     	The appeal form, at page 80 to 81, said the claimant was appealing against the decision in the letter dated 16 January 2007 to apply the non‑dependant deduction for his daughter when she was not living at the property; but the detailed grounds of appeal (obviously written out for the claimant by the officer, as the handwriting is different) also made it clear he was seeking to challenge the parts of both letters relating to the overpayment and any decision to recover it from him.  
     9.     	The Council failed to trace the claimant’s daughter at the most recent address he had given, and he failed to respond to its further inquiries in a letter dated 7 February 2007; so it declined to alter its decision of 16 January and the case proceeded to appeal. 
     10.     	At the hearing on 14 May 2007 both the claimant and his daughter attended and gave oral evidence, though it is not possible to see what the actual evidence was as the papers do not contain a copy of the chairman’s contemporaneous note and there are only fairly short references to it in the statement of reasons.  However it is plain that whatever their evidence was, the chairman regarded it as unsatisfactory. She recorded her view that they were guilty of deliberate falsehoods made up on the spot to deal with her questioning, and said that “In the tribunal’s opinion both father and daughter have been willing to say anything which they consider at that moment best fits the circumstances”.  Deciding the appeal against the claimant and holding the Council’s decision correct because he had failed to prove the negative, she said:
“24. The tribunal considers that the claimant has not got anywhere near demonstrating that the local authority made a mistake as to a material fact on 17 January 2007 when deciding that [his daughter] was resident at the claimant’s home between 10 October 2005 and that date.”
     11.     	On that basis the chairman recorded a finding that the claimant’s daughter was living at his home at all times from 10 October 2005 to 17 January 2007, and further that because there was no evidence of what she had been doing from 10 October 2005, it was right to infer that she must have been supporting herself and in receipt of an income throughout the period that justified the maximum deduction from his benefit.
     12.     	In my judgment the tribunal’s treatment of the factual evidence, and the issues required to be determined on the appeal, is shown by the passage just quoted from paragraph 24 of its statement of reasons to have been mistakenly skewed against the claimant by requiring him to displace a presumption that the local authority’s view of the facts when it made the decision under appeal was correct.  That this was a fault of substance, not just an unfortunate piece of expression, is confirmed by what the chairman had said earlier in her statement of reasons, beginning in paragraph 3 where she said:
“3. The claimant has treated this appeal as being a straightforward appeal about his daughter’s presence in or rather absence from his household.  However due to the history of this matter, the nature of the appeal is not straightforward.”;
and in the summary in paragraphs 7 to 10 of what she considered the material provisions of law she was applying to the evidence, where she referred to the claimant as being out of time for applying to “revise” the original award decision of 3 February 2005, or to supersede it on account of a mistake or ignorance as to material fact, and then continued:
“9.… What the claimant now wishes to do is to revise the decision of 16 January 2007 on the grounds that this decision contains a mistake as to a material fact namely that at all times from 10 October 2005 [his daughter] was not resident in the claimant’s home and was therefore not a non‑dependant.  There is no separate right to appeal a refusal to revise but the claimant is entitled to raise the issue in an appeal against the underlying decision – see the Tribunal of Commissioners decision in R(IS) 15/04.
10.  Nevertheless it must be remembered that it is the claimant who is seeking to change the finding contained in the decision dated 3 February 2005 that [she] was resident at the premises.  It is for him to show that the decision of 17 January 2007 contained a mistake by the local authority as to a material fact.”
     13.     	I have to say that those passages reveal an unfortunate muddle about what the appeal before the tribunal was actually about; which seems to me in truth to have been a good deal nearer the simple approach of the claimant himself for which he was criticised in the chairman’s paragraph 3, than the points on revising and superseding decisions into which she then apparently got diverted.  
     14.     	What was before the tribunal was an appeal against the local authority’s decisions recorded in its letter or letters of 16 January 2007, in which the local authority had itself superseded all its own previous decisions on the claimant’s benefit entitlement back to 6 September 2004 and substituted fresh ones.  All aspects of the correctness of those freshly substituted decisions, whether on points of fact or on points of law, were thus able to be put in issue by the claimant on his appeal against them.  Such an appeal is of course in the nature of a complete rehearing by the tribunal in the exercise of its inquisitorial jurisdiction, with no question of there being any automatic binding force in any previous decision or decisions which the fresh ones had replaced, still less any factual assumptions on which such decisions had been based, even if actually material to them. Nor is there any question of starting with any automatic presumption that any previous decision, or any material (still less an immaterial) factual assumption made at that time was to be taken as correct, and not able to be shifted on the appeal against the decisions of 16th (not 17th) January 2007, unless the claimant discharged a burden of demonstrating some “ignorance or mistake of material fact” on the part of the Council of the kind that would have enabled him to apply for an unappealed decision to be revised or superseded.
     15.     	The determination of factual questions and the assessment of weight and credibility must of course always be matters for the tribunal actually seeing and hearing the evidence.  However the approach evident from what the chairman said about the issues on the appeal and the task for the claimant in this case showed she materially misdirected herself, in particular in apparently requiring him to rebut a presumption that the local authority’s decision and the factual assumptions it embodied must be taken as correct unless he proved the contrary.  On that ground, the decision must be set aside as unsafe.  I also broadly agree with the more detailed criticisms of the tribunal’s treatment of the evidence made in the submissions on behalf of the claimant by his representative Mr K Venables, of the Leicester Law Centre, at pages 116 to 123, 135 to 140; though in view of the conclusion I have already expressed it is not necessary to say more about those except that I found them well argued, with conspicuous fairness and moderation.
     16.     	I therefore set aside the decision of 14 May 2007 as erroneous in law and remit the case to a fresh tribunal which I direct to rehear and redetermine the claimant’s appeal against the Council’s redetermination of his housing and council tax benefit entitlement for the successive periods from 6 September 2004 as embodied in its decision letters of 16 January 2007, with all relevant factual and legal issues being for the tribunal itself to determine on that appeal in the normal way without any special assumptions or presumptions from what may have been decided or done in the past.  
     17.     	The principal factual issue for determination by the tribunal is of course the crucial one of whether (as presumed by the Council in the absence of evidence to the contrary) the claimant’s daughter was in fact still continuously residing with him throughout the period from 10 October 2005 to 16 January 2007 inclusive.  For the period before that her residential status was (as the previous tribunal omitted to point out) on any footing irrelevant, as no deduction from his benefit was or is sought to be applied, and any continued mention of her in the automatically-issued benefit notifications in 2005 and 2006 could reasonably have been regarded by anyone as immaterial.  
     18.     	If the tribunal is satisfied it is fair to conclude on the balance of probabilities that the claimant’s daughter was in fact still living with him throughout the period from 10 October 2005 onwards, then it needs to go on and make its own further findings as to the income she was receiving and the non‑dependant deduction that in consequence should be applied.  Again, while inferences may be drawn from any failure of the claimant to provide information, these must be properly based, rather than starting with an automatic presumption that the maximum deduction must apply unless a claimant is able to demonstrate the contrary.  
     19.     	Finally as even its own officer who filled in the appeal form apparently understood the Council to have made at least some determination of overpaid benefit against the claimant which needed to be put in issue on his behalf in his appeal, I agree with Mr Venables that the status of this is also something that should be addressed by the tribunal and properly determined so far as possible.  It will obviously be more satisfactory if all relevant factual and legal issues can be dealt with effectively by the same tribunal at a single hearing; and accordingly if a further formal overpayment decision is intended to be issued by the Council this should be done by it, or its position otherwise clarified, as quickly as possible so that the matter can all be brought before the tribunal at once.
     20.     	The claimant’s appeal is allowed and the case remitted for redetermination accordingly.  
(Signed)
P L Howell
Commissioner
15 July 2008