IN THE UPPER TRIBUNAL	Case No.  CH/4784/2014
ADMINISTRATIVE APPEALS CHAMBER

Before	            M R Hemingway: Judge of the Upper Tribunal 

Decision:	The decision of the First-tier Tribunal sitting at Taylor House in London under reference SC242/13/15965 involved an error of law and is set aside. The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.

	This decision is made under section 12(1), 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

(1)	The new hearing shall be an oral hearing. It shall take place before a completely differently constituted tribunal to that which considered the appeal on 22 November 2013.

(2)	If either party has further written material to place before the tribunal it should be sent to the tribunal within one month of the issuing of this decision.

(3)       These directions may be varied at any time by a district tribunal judge of the First-tier Tribunal in the Social Entitlement Chamber. 

REASONS FOR DECISION

The decision in summary

1.	This is the appellant’s appeal to the Upper Tribunal against the decision of the First-tier Tribunal (F-tT) dated 22 November 2013.  My decision is that the F-tT’s decision involved an error of law.  I allow the appeal to the Upper Tribunal and set aside the F-tT’s decision. The appeal against the respondent local authority’s decision of 18 July 2013 will have to be re-heard by a new tribunal.		

The background

2.	The appellant, having previously been residing in hotel accommodation, moved to a domestic property (the premises) which was already let to a person I shall refer to as Ms G.  She moved in on 24 May 2014 and Ms G remained at the property. She claimed housing benefit in respect of her occupation of the premises.  In so doing she was contending, effectively, that a part of the address had been sub-let to her by Ms G.

3.	The local authority explored the nature of the arrangement between the appellant and Ms G with some care.  It interviewed both of them.  Having done so, it concluded that there was no commercial arrangement between them with the consequence that the appellant was to be treated as a person who was not liable to make payments in respect of the premises.  Here, the local authority respondent had in mind regulation 9 of the Housing Benefit Regulations 2006, the salient parts of which read as follows: 

“Circumstances in which a person is to be treated as not liable to make payments in respect of a dwelling.

9. - (1) A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where – 
(a) The tenancy or other agreement pursuant to which he occupies the dwelling is not on a commercial basis; …

(2) In determining whether a tenancy or other agreement pursuant to which a person occupies a dwelling is not on a commercial basis regard shall be had inter alia to whether the terms upon which the person occupies the dwelling include terms which are enforceable at law.”

4.	Thus, the respondent concluded there was no entitlement to housing benefit. The appellant, dissatisfied with that outcome, appealed. 

The appeal to the First-tier Tribunal

5.	There was an oral hearing. The appellant attended, accompanied by a friend, and gave oral evidence. She was not represented at that stage. The respondent, however, was represented by one Mr Richard, a presenting officer from the local authority.  

6.	The F-tT dismissed the appeal.  It issued a decision notice, to that effect, on 22 November 2013 (the date of the hearing).  

7.	The appellant did not immediately react to the F-tT’s decision but, on 24 February 2014, she wrote to the F-T saying she wished to appeal to the Upper Tribunal and explaining the delay as being due to her having been homeless.  The F-tT issued helpful directions which explained to the appellant the procedure she would need to follow if she wished to mount such a challenge, indicated that her letter was being treated as a late request for the F-tT to produce its statement of reasons for decision (statement of reasons) and invited her to submit supporting evidence regarding the lateness of her response to the decision notice. She replied  and the late request for a statement of reasons was admitted.  Thereafter, on 12 May 2014, the F-tT produced its statement of reasons.  This was sent to the appellant on 29 May 2014. 

8.	In its statement of reasons the F-tT noted the respective positions which have been taken by the appellant and the local authority and having done so said this;

		“16. In the circumstances, the Tribunal is satisfied on a balance of probability
                                 on the facts before it pertaining to the purported agreement that [the
                                 appellant] was not liable to make payment in respect of [the address] 
                                 because her “landlady” says she was not liable to pay rent.”

9.	Although the way it put it suggested it might have been finding there was no legal liability to pay at all such that the appellant did not fall within regulation 8 as being a person to be treated as liable to make payments, (in which case it would be unnecessary to consider regulation 9 and the question of commerciality) I suspect, in reading the decision as a whole, it was really intending to find there was no commercial arrangement so that the appellant was to be treated as not liable to make payments on that basis.  

The permission stage

10.	The appellant applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal.  She did so by a letter dated 31 July 2014.  So, again, bearing in mind that there is a one month time limit both for requesting a statement of reasons and for lodging an application for permission to appeal to the Upper Tribunal with the First-tier Tribunal, she was out of time for a second time. She apologised and said that she had “only just” received the statement of reasons because a friend who receives letters on her behalf had misplaced it.

11.	On 27 August 2014, a district tribunal judge of the First-tier Tribunal refused to extend time so as to admit the application for permission to appeal.  The district tribunal judge added that if she had admitted the application she would have refused it.

12.	The appellant then instructed a Law Centre and her representatives made an in time application, to the Upper Tribunal, for permission to appeal. The appellant advanced five distinct grounds of application. Upon receipt of them I directed the respondent local authority to make any written representations it wished as to whether or not the Upper Tribunal should, in its discretion conferred upon it by rule 21(7)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008, admit the application for consideration despite it not having been lodged with the First-tier Tribunal in time. I directed the respondent to forward any comments in had within one month and indicated, that should I not receive a reply within that time, I would consider, on the basis of the material before me, whether or not to extend time and, if so, whether to grant permission.  The local authority did not respond.

13.	On 29 May 2015 I extended time so as to admit the application.  I did so because the appellant’s delay was not of inordinate length, she had offered something of an explanation for it and because the application appeared to have some merit.  As to the application itself, I commented that whilst there were five grounds, I did not see merit in four of them, the points raised therein seeming to me to involve various levels of ambition, but I did grant permission on one ground which was to the effect that the F-tT might have erred in failing to adequately explain what it made of the appellant’s oral evidence, why it appeared to reject it and why it found the information provided by Ms G which was in conflict with that provided by the applicant, to be persuasive.

Post-grant submissions

14.	The respondent local authority was directed to, and did, provide a written response to the appeal in light of the grant of permission. However, in addressing the basis upon which I had granted permission it simply observed;

		“Cannot answer for the actions of the First-tier Tribunal”.

15.	It then embarked upon a discussion of the facts of the case, as it saw them and invited me to “confirm the original decision of the First-tier Tribunal”. That response was filed under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.  The appellant was invited to file a reply under rule 25, within one month of the response being sent out.  However, that one month deadline passed without anything further being heard from the appellant herself or the Law Centre.  There is nothing to indicate that the letter inviting the reply, which had been sent to the Law Centre, has gone astray.  In the circumstances I have simply assumed that it has been decided not to file a rule 25 reply and have proceeded accordingly.

My decision

16.	I have decided that the F-tT did err in law. I have decided to set its decision aside. It did not explain why it was rejecting the appellant’s oral evidence and, indeed, her written evidence, regarding the arrangement she says she had with Ms G and it did not explain why it found Ms G’s explanation of the situation, as recounted to the respondent local authority, to be persuasive.  This is because it simply jumped from setting out the evidence to stating, as it did at paragraph 16 of its statement of reasons which is set out above, what its conclusion was in light of the evidence.  It did not insert what should have been the middle portion or, if it can be put this way, the filling in the sandwich which would have been the explanation as to how, from the evidence it had, it had reached the conclusion that it did.  It might not have had to have said very much about what it made of the appellant’s evidence but it was required, at least, to say something so that its reasoning would be clear and intelligible and understood by the parties.

A word to the local authority

17.	As will be apparent from what I have said above, the respondent local authority did not seem to fully appreciate what was required of it when it filed its rule 24 response.  This is not the first time I have come across such a misunderstanding on the part of a local authority nor is this the only local authority which appears, on the basis of cases I have seen recently, to have such a misunderstanding.  I am not seeking to make a criticism but I thought, in light of the above, it might be of some assistance if I said something about all of this.

18.	In looking at the written response, the respondent local authority appeared to think that it was not permitted or should not or could not comment upon any possible failings by the     F-tT but, instead, should simply focus upon arguing about the facts of the case. That is not right.

19.	When the Upper Tribunal is considering an application for permission to appeal to it, it is considering only issues of law.  Almost always, if it decides to grant permission that will be on the basis that it thinks that it is arguable that the F-tT erred in law.  It is not saying, at that stage, even if granting permission, that the F-tT actually did err in law.  It may be that part of the respondent local authority’s misapprehension resulted from a mistaken belief that a grant of permission in some way equates to a decision setting aside the F-tT’s decision.  It does not.

20.	 Therefore, at the stage where the response and the subsequent reply are invited, all that is being said is that the F-tT may have erred in law.  Accordingly, the response should address the question of whether or not it is thought that the F-tT actually did err in law or not. The respondent might accept that there has been an error of law or, equally, it might not.  But in commenting on this question it is not answering “for the actions of the First-tier Tribunal” it is simply expressing a view, one way or the other, which it is entitled to express and which, for it to play a proper part in the process, it should express.  That is because, once the response and any reply which might be filed have been received, the Upper Tribunal will have to take a decision as to whether or not there has been an error of law such as to justify the setting aside of the F-tT’s decision.  If the respondent chooses not to comment about this it means that it has no input into the error of law decision.  It may still be appropriate for the submission to, additionally, refer to the facts of the case if, for example, it is asserting that they were such that no reasonable tribunal could have reached a different view or if it is being said that, in the event of the decision being set aside, the Upper Tribunal should go on to re-make the decision itself.  But a response should certainly not be solely concerned with argument as to fact.

What happens next?

21.	I have set aside the F-tT’s decision. There are, therefore, facts to be found, not least with respect to the nature of the arrangements between the appellant and Ms G and with respect to the sharply contrasting versions of events given by each of them.  It is appropriate, therefore, for these findings to be made by a differently constituted F-tT as an expert fact finding body.  I have, therefore, decided to remit to a new F-tT.

22.	There will, therefore, be a fresh hearing before the new F-tT. The new F-tT will consider the evidence afresh and reach its own findings and conclusions based upon the evidence before it including any additional evidence it might receive prior to or at the hearing.  It occurs to me that the new F-tT may wish to consider whether it can be satisfied that the appellant is liable to make payments at all (see regulation 8) as, if there is no liability, then it will be not necessary to go on to consider regulation 9 which pre-supposes liability.   In any event, there will often be some overlap between regulation 8 and 9 issues.  It might be thought that, strictly speaking, the issue of liability is not an issue raised by the appeal given the local authorities position that regulation 9 is the key provision (see section 12(8)(a) of the Social Security Act 1998) and the new F-tT may wish to take that view but, of course, it may deal with matters not raised by the appeal if it wishes.  I have directed an oral hearing so the appellant will be able to provide additional oral evidence assuming she attends.  She would be well advised to do so because credibility is likely to be a key issue with which the new F-tT will be concerned.                

Conclusion

23.	The appellant’s appeal to the Upper Tribunal, to the extent and on the basis explained above, is allowed.

(Signed on the original)

							M R Hemingway
							Judge of the Upper Tribunal

			Dated                                      26 August 2015