AA [2009] UKUT 86 (AAC)

UKUT-AAC
AA
[2009] UKUT 86 (AAC) · 2009-05-14
[1]IN THE UPPER TRIBUNAL Appeal No. CH/1602/2008 ADMINISTRATIVE APPEALS CHAMBER Before Deputy Judge of the Upper Tribunal Miss E. Ovey Decision: The decision of the Appeal Tribunal given on 25th February 2008 contained an error on a point of law. Accordingly, the claimant's appeal against the decision is allowed. In exercise of my powers under section 11(2) of the Tribunals, Courts and Enforcement Act 2007, I re-make the decision and decide that the claimant's entitlement to housing benefit and council tax benefit was not validly terminated on 2nd August 2006. REASONS FOR DECISION This is an appeal by the claimant against the decision of the Leicester Appeal Tribunal given on 25th February 2008 by which the tribunal dismissed the claimant's appeal against the decision of the respondent local authority made on 2nd August 2006 terminating the claimant's claim to housing benefit and council tax benefit. Although the appeal was made to the Social Security Commissioners, those proceedings were transferred to the new Upper Tribunal on 3rd November 2008 under the Transfer of Tribunal Functions Order 2008, S.I. 2008 No. 2833, as explained by Judge Pacey when giving case management directions. The transfer does not affect the substance of the appeal. My decision is set out above and my reasons are as follows. The facts[2]It appears to be agreed that at the material time the claimant had been entitled to payment of housing benefit and council tax benefit based on his entitlement to income-based jobseeker's allowance since at least July 2001. It is also, I think, undisputed that English is not his first language and that he has received assistance in connection with his housing benefit and council tax benefit claim from the Income Management team and a Tenancy Services Officer of the local authority. The property he occupied at the material time was a council flat.[3]By letter dated 26th January 2006 the local authority wrote to the claimant informing him that an officer would be visiting him on 31st January 2006 as part of the Verification Framework. He was given a number to ring if he was not available on that date and warned that his benefit would be affected if the visit did not take place. The letter explained that the visit was to ensure that he received all the housing and council tax benefits which he was entitled to and asked him to have certain specified information available.[4]According to the local authority, an officer went to the property on the specified date but received no answer from the claimant, so a card was left asking the claimant to contact the office to rearrange the visit. No copy of the card appears in the papers and the claimant now says he knows nothing of this visit.[5]By a further letter dated 14th February 2006 the local authority wrote to the claimant referring to the visit made on 31st January 2006 and the card left and stating that the local authority had heard nothing from him. The letter warned the claimant that his benefit would suspended from 6th March 2006 if a successful visit was not carried out and that if a visit could not be carried out, it might result in the termination of his benefit. This communication apparently did reach the claimant, since there is then a record of a telephone call from him to rearrange the visit. No arrangement could be made there and then but the message was to be passed on to the relevant team.[6]The local authority then wrote to the claimant on 16th March 2006 notifying him of a visit on 22nd March. The letter was in very similar terms to the letter dated 26th January 2006. Unfortunately, that visit also proved abortive and on the day of the visit the local authority wrote to the claimant suspending his housing and council tax benefit. The suspension was stated to be because a question had arisen about his entitlement to those benefits and to be made under regulation 11(2)(a) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, S.I. 2001 No. 1002 ("the Decisions and Appeals Regulations").[7]In addition, the letter informed the claimant of his right to ask the local authority to revise the decision and went on to say that because his payments had been suspended under regulation 11(2)(a), he was a prescribed person for the purposes of regulation 13(2) of the Decisions and Appeals Regulations and so, by regulation 13(4), was required to provide any information requested by the local authority within one month of their sending the notice. The letter warned the claimant that if he failed to do so his claim would be terminated under regulation 14 and set out what information was required. It also explained that the local authority wished to obtain the information by a visit, but provision of the information by letter would be sufficient to prevent termination of the claim. Since, however, the claimant had not been at home for any of the visits which had been arranged, doubt would remain about his entitlement and the suspension would remain in place until those doubts could be cleared up, and the quickest way to do so would be to allow the local authority to visit the claimant at home.[8]As far as appears from the papers, nothing further occurred until 12th June 2006, when the claimant came into the office and said that he had been at home on the occasion of the last visit, but the buzzer for the entry door did not work.[9]That visit to the office appears to have been sufficient for the local authority to rearrange a visit to the claimant's home rather than to terminate his award of benefits. By letter dated 21st July 2006 the local authority again notified the claimant of a visit, this time on 2nd August 2006, in terms very similar to those used previously. Again when the visit took place the claimant did not answer the door. By letter dated 2nd August 2006 the local authority wrote to the claimant notifying him that his housing benefit and council tax claims had been cancelled because it had not been possible to visit him and verify his claim. The letter informed the claimant of his rights of appeal.[10]This led to a telephone call from someone on the Income Management team on behalf of the claimant asking the local authority to rearrange the visit. The local authority's submission to the tribunal states that no further visit was thought appropriate, since the claimant was no longer entitled to housing benefit or council tax benefit. The papers are silent on the question whether, and if so, when, that decision was notified to the claimant.[11]On 3rd November 2006 the claimant made a new claim for housing benefit and council tax benefit. He produced certain information relating to his jobseeker's allowance for the purposes of that claim and was awarded benefit from 6th November 2006. On 1st December 2006 the claimant visited the local authority's office and apparently queried the termination of his previous award. He was advised that if he wished to appeal against that decision he needed to put his appeal in writing and give the reasons. He eventually gave notice of his wish to appeal by a formal statement dated 4th January 2007 witnessed by the Tenancy Services Officer. The statement reads as follows:
"I would like to appeal against the decision to cancel my housing benefit from 26th March 06 to 5th November 06. I am aware of the first VF visit on 22nd of March being unsuccessful because my buzzer was not working although I stayed in. The second time I was still waiting for the visit on 2nd August but I don't know how I missed it. I waited until 5 pm. As far as I am aware, there was not a third visit booked. I have been trying to sort this out since March and have been unsuccessful. I don't know why there was such a long period between March and August to obtain a second visit but I am willing to be available any time in order to sort this out. Please reconsider my claim."
At the bottom of the statement is a manuscript note in what looks as if it may be the Tenancy Services Officer's handwriting to the effect that the buzzer still did not appear to be working despite various call outs. It will be observed that there is no suggestion that the claimant made any attempt to provide the information requested otherwise than in the course of a home visit.[12]On 16th January 2007 the local authority wrote to the claimant pointing out that an appeal should normally be brought within one calendar month from the sending of the letter notifying a decision. The letter asked the claimant to set out his reasons for bringing his appeal late in writing within 14 days and informed him that if he did not do so, the appeal would be submitted to The Tribunals Service which would decide whether it could be admitted late.[13]It seems that that letter led the claimant to write directly to The Tribunals Service on 25th January 2007 saying that he had been asked by the local authority "to get permission for my backdate application for [26th March to 5th November 2006] to be investigated". The letter continued:
"The reason for my application is that between those above date I have not been paid housing benefit on my rent account, thus this has left rent arrears on my account of over a thousand pounds on my account. I was asked to do a backdate application by my local income management officer. I did this on 4th January 2007. I signed this letter, the officer helped me as English is not my first language. I received a letter dated 16th January 2007 telling me that my backdate application was out of date, at no time previously was I told by anybody at the council that my backdate application was late, I have been trying to get my housing benefit sorted for the above for months and months. If you see attached documentation I have provided various documentation to get my claim sorted, but still my benefit has not been resolved."
The letter goes on to refer to the problems with the buzzer and to ask The Tribunal Service to allow the backdate request.[14]There is no trace in the papers of any application by the claimant to backdate his new claim from 6th November 2006 to 26th March 2006 and it is not otherwise suggested that any such claim was made. The document dated 4th January 2007 is in its terms clearly an appeal against the local authority's termination decision. Even a successful backdating application could not solve the problem of the period from 26th March to 2nd August 2006, during which the claimant had an award of benefit but payment of benefit was suspended. In those circumstances, I treat the letter dated 25th January 2007 as simply restating the claimant's case as to the facts. The appeal to the tribunal[15]In the event, time for bringing the appeal was extended by the district chairman and the appeal came to be heard on 6th August 2007. The tribunal had before it a submission on behalf of the claimant from an adviser to the effect that there was no reasonable doubt as to his entitlement to benefit and that in the circumstances the local authority had not acted reasonably in suspending and then terminating the claimant's benefits. The submission specifically asked the tribunal to consider whether the local authority acted reasonably in not revising or superseding its decision of 2nd August 2006 and whether the local authority could have established the claimant's residence by examining material such as utility bills rather than insisting on a visit, the date and time of which the claimant could not control and which he was legally entitled to refuse.[16]Unfortunately, the adviser who prepared the submission was unable to attend at the hearing, although another representative, who was not handling the case, was present. The tribunal adjourned the case and it came back for hearing on 9th October 2007. On that occasion the claimant gave oral evidence about the entry door to his block of flats and the problems with the buzzer. He also mentioned having gone to a local authority office at some time after 22nd March 2006 and having found that the office had moved. He was told the new address and advised to put something in writing.[17]The tribunal accepted that the difficulties in gaining access to the claimant's property were the result of the problems with the buzzer and decided that the claimant was entitled to both housing benefit and council tax benefit from 26th March 2006. He revised the decision of 2nd August 2006 (wrongly identified as 2nd August 2007) accordingly. On being asked by the local authority for a statement of reasons, however, he added the comment:
"On revisiting the decision the Tribunal note that there was a failure on the part of the Tribunal to make adequate enquiries and findings of fact regarding the points raised in paragraph 9 of the local authority's submission, viz [the claimant] apparently failed to make any attempt to take the information requested in the letter of 22 March 2006 into the local authority office or alternatively to post the same to the local authority. Further enquiries and findings of fact regarding these matters clearly need to be made. Failure by the Tribunal in this regard amounts to an error of law."
Not surprisingly, the tribunal's decision was set aside and the matter was listed for rehearing.[18]The case came before the tribunal again on 25th February 2008 and on that occasion the appeal was dismissed. The claimant continued to be represented, but gave no oral evidence at the hearing, relying on points of law alone. In his decision notice, which also served as a statement of reasons, the tribunal said:
"7. A central issue is whether or not the appellant was living at the benefit address at the relevant time. 11.. The Commissioner's decision in the linked appeals CH 4390 and 4391/03 makes it clear that periodic checking and verification are appropriate council procedures to "substantiate or confirm a person's entitlement" (para. 11). It is common ground that the appellant has not complied with the request to provide the information sought. 12.. The grounds of appeal indicate that the claimant's initial declaration is sufficient. The decisions relied on refer to there being no rule in English law that requires corroboration of a claimant's evidence. I accept that this is true but the later findings of the House of Lords and the Commissioner make it clear that substantiating a claim at a later date (in the present case some years after the initial declaration) is appropriate and it is for the claimant to supply information within his knowledge that has been reasonably requested. I find that this applies even where the DWP has not raised an issue as to entitlement since it is open to the council to substantiate or confirm entitlement. 13.. I reject the representative's submission based on the Johnson case. The issue is the provision of information and not whether it is provided in a face to face interview (be that at an office or on a home visit). The council advised the appellant that it would accept information provided in writing and it was not provided by that or any other means. 14.. I find that the appellant failed to supply evidence and information requested and that it is appropriate to terminate his benefit with effect from 26/3/06."
[19]The claimant applied to the district chairman for leave to appeal, which was refused. (Incidentally, the letter of application asserted for the first time that the claimant could not write.) He then renewed his application for leave to the Social Security Commissioners, stating as his grounds:(1) the tribunal failed to identify exactly what information the authority required;(2) given that the authority already held information on the claim, the tribunal failed to find if it was reasonable to request this information;(3) the local authority's letters lead the reader to draw the inference that a home visit (which the claimant could refuse) was required and the tribunal failed to find what other information was required;(4) the decision CH 4390 and 4391/03 relates to council tax benefit and not to a tenant of the local authority;(5) that decision does not refer to the decision in Johnson and so may be erroneous.[20]The application was considered by Judge (then Mr.Commissioner) Pacey, who said: "I am not persuaded that any reasonably arguable point of law arises in relation to grounds 1-3 in the application. Various assertions had been made on behalf of the claimant, that he was illiterate, that the information provided on the original claim should … have been relied upon, that the information required was not made clear and that a home visit was not necessary. The claimant's illiteracy could not, however, reasonably have been an excuse for three failed attempts by the local authority to visit him. The original claim to housing benefit and council tax benefit had been made almost five years ago and the requirements of the local authority, as set out in their letters, were clear. The local authority made it clear that a visit was thought to be the simpler way of dealing with the matter and invited submissions of documents from the claimant as an alternative. It may, however, be arguable that the tribunal erred in simply finding that the claimant failed to supply information (paragraph 14 of the full statement) given what was said in CH/2555/07. Arguably the tribunal ought to have addressed whether that failure was sufficient to give the local authority grounds to supersede." (The omitted word in the first paragraph quoted is "not", which in my view is clearly an error.) The claimant was therefore given leave to appeal on 9th July 2008. The present appeal[21]The local authority produced a submission on the appeal which is dated 6th August 2008. It contains substantial material about the Verification Framework and information about a failure by the claimant to respond for a request for information which led to suspension of his benefits in 2005. This material is relied on as strengthening the local authority's doubts about the claimant's residence at the property, but was not before the tribunal and therefore was not something with which the claimant then had the opportunity to deal. In those circumstances, I disregard it in dealing with this appeal.[22]The local authority's submission is essentially:(1) a local authority must act reasonably both in suspending payment of benefit and in deciding what information or evidence it seeks;(2) it is reasonable to conduct a review from time to time in accordance with the Verification Framework;(3) the information sought and the manner and time over which it was sought was reasonable;(4) there is no right of appeal against a decision to suspend payment of benefit;(5) when regulation 14 applies, the local authority is obliged to terminate the award. It is not a matter of discretion;(6) the claimant's behaviour did give rise to doubt whether he was actually in occupation of the property or was simply visiting from time to time to collect post;(7) the principles in CH/4390/2003 and CH/4391/2003 apply equally to the present case in so far as they are dealing with its being appropriate to take steps periodically to verify a claim;(8) Johnson is not relevant for the reasons given by the tribunal;(9) CH/2555/2007 does not assist because the issue in that case was termination on refusal of a visit, not termination for failure to provide evidence and information which was reasonably requested.[23]The claimant's representative responded on 29th August 2008 asserting that the local authority had paid too much attention to the Verification Framework and too little to common sense and reasonableness.. The points made were:(1) consideration should have been given to whether it was reasonable for the local authority to revise or supersede its termination decision once it had established the claimant's residence at the property, as had been done for the new claim;(2) the evidence required by the local authority had not been established;(3) it would have been reasonable for the local authority to seek to establish the claimant's residence by contacting his housing officer and to have taken steps to investigate the maintenance problems with the door buzzer;(4) the local authority was on the one hand claiming to doubt the claimant's residence while on the other pursuing him for unpaid council tax and seeking possession from him for non-payment of rent (as I understand the submission);(5) the local authority could have investigated the claimant's residence under the Regulation of Investigatory Powers Act 2000 rather than suspending and terminating the claimant's benefit;(6) the tribunal failed to find if the authority acted reasonably in revising or superseding its decision to suspend and terminate benefit and erred in law in not considering the full circumstances. (I think that in substance the contention is that the tribunal failed to make a finding as to whether the authority acted reasonably in not revising or superseding its decision.) The claimant also applied for an oral hearing so that the decision maker could give evidence as to the information actually required by the local authority and for a direction that the case be heard together with another case which was alleged to be almost identical.[24]Judge Pacey refused the application for an oral hearing on the ground that the issue was whether or not the tribunal had erred in law, not what the attitude of the decision maker was. He also refused the application that the case be heard with the other case, (CH/2727/2008) but stayed this case pending the decision in the other case and allowed the parties an opportunity to make any further response in the light of that decision.[25]In the event, although the appeal in CH/2727/2008 included in its factual background difficulties with home visits to the same block of flats as the block containing the claimant's flat, and some similar issues were raised, important features were significantly different. In particular, the local authority had purported to suspend payment of benefit under regulation 13 (not regulation 11) of the Decisions and Appeals Regulations without having made a prior request for information, and conceded that in consequence its subsequent termination of the award was invalid. The appeal was allowed on that basis and such of the grounds as were similar to those in the present case were not dealt with.[26]Not surprisingly, the claimant did not seek to add anything to his appeal as a result of that decision. He did, however, by letter dated 16th January 2009, seek to raise as additional grounds of appeal:(1) that the second tribunal found as a fact that the claimant did not provide the information requested by the local authority without making any enquiries to substantiate that fact, although the decision of the first tribunal had been set aside for failure to make such enquiries;(2) that the only element of the claim about which the local authority could have wanted to be satisfied was the claimant's residence, bearing in mind that he was in receipt of income-based jobseeker's allowance and was a council tenant, and the tribunal had failed to identify what evidence in that respect the local authority required.[27]The local authority also made a further submission with no reference to CH/2727/2008. The submission, dated 23rd January 2009, made the point that in cases being addressed by the visits team under the Verification Framework, all elements of the award were being checked, which meant that if information was not supplied at all it was difficult to proceed by way of drawing inferences (potentially leading to a supersession decision), and so the suspension and eventual termination procedure was followed. It was again submitted that following termination there is no scope for revision or supersession and that it was the failure to provide the information required by the letters, not the failure to manage a home visit, which led to termination.[28]This led to a further submission, dated 30th January 2009, from the claimant's representative, pointing out that the local authority's original submission to the tribunal asserted that benefit had been terminated on the ground that the authority had not been able to verify the claimant's occupancy of the property and asserting that the reality was that benefit had been terminated because no home visit had taken place and not because of the failure to supply information. In support of that submission, the representative went through the pieces of information requested, contending that, in effect, either there was no evidence that such material existed or the local authority could have obtained it elsewhere. The final submission was that in simply finding that the claimant failed to supply information there was an error of law and that the tribunal should have looked at whether the failure to make a home visit was sufficient to give the local authority grounds to supersede. My decision The claimant's original grounds of appeal[29]Those grounds are set out in paragraph 19 above. The first ground, that the tribunal failed to identify the information required, appears to me hopeless. It is clear from the decision notice that the tribunal had in mind the information referred to in the letters dated 26th January, 16th March, 26th March and 27th July 2006.[30]It is then said that the tribunal failed to find that it was reasonable to ask for that information. In my view, on a fair reading of paragraphs 11 and 12, the tribunal did make a finding that the information requested was reasonable, because it was required in connection with a periodic checking and verification process which was itself proper. The tribunal expressly found that substantiating a claim at a later date was appropriate even where no issue as to entitlement had been raised by the Department of Work and Pensions. The claimant's written submission to the tribunal and the oral submissions of his representative as recorded in the record of proceedings and the tribunal's decision notice did not include any challenge to the reasonableness of requiring any particular piece of information, but amounted rather to an attack on the local authority's right to conduct any form of verification process if it does not possess information to cast a doubt on the validity of the award. The tribunal therefore did not make an error of law in treating the requested information globally rather than conducting a detailed analysis along the lines of the claimant's submission dated 30th January 2009.[31]For the avoidance of doubt, I should make clear that the legal basis on which the tribunal proceeded was clearly supported by the authorities referred to, namely, Kerr v. Department of Social Development [2004] UKHL 23 , R(SF) 1/04 , and CH/4390/2003 and CH/4391/2003. Kerr deals with the general approach to social security claims, and it is worth citing paragraph 62 of Lady Hale's speech:
"What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions for entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced."
This is a very different matter from the claimant saying to the Department for Work and Pensions or, as here, the local authority that the Department or authority can find the information out by other routes and should not be asking him for it. The claimant's submissions here tend very much to the latter, impermissible, approach.[32]The decision in CH/4390/2003 and CH/4391/2003 deals directly with the reasonableness of periodic verification. I regard it as implicit in the subsequent Commissioner's decision CH/2555/2007 that it is reasonable for a local authority to have a general policy covering both conducting periodic reviews and the methods by which information required for the purposes of such reviews is to be sought. The qualification introduced by that decision is simply that if the local authority seeks to insist on gathering the information by means of a home visit and the requirement of a visit is challenged, the question must be asked whether the home visit itself was a reasonable information requirement. That is not this case. The information identified by the tribunal as required, and the information in fact plainly required by the letters, was the specified information and supporting documents, and not the making of a home visit, to which, in any event, the claimant made no objection.[33]For the sake of completeness, I mention also that, as noted in paragraph 15 above, the written submission to the tribunal itself asked whether the local authority could have established the claimant's residence by reference to utility bills. Utility bills were one of the pieces of information specifically requested by the local authority, and the one most obviously suited to proving residence, but there is no shred of evidence that the claimant made any attempt to establish his residence by that means. It was not until the submission of 30th January 2009 that it was suggested on behalf of the claimant that there might not be any current utility bills. If that is the case, although it was not so contended as a fact at any time, it was a matter clearly within the claimant's own knowledge and to be explained by him.[34]The third ground of appeal originally raised may fairly be summarised as being that in reality the only information requirement imposed by the local authority was a requirement of a home visit. That is inconsistent with the terms of the various letters, which make clear that the risk of termination can be averted by the provision of the specified information without a home visit. The fact that the suspension under regulation 11 might continue until the local authority was satisfied that the property was the claimant's main home does not affect this point.[35]The remaining two grounds of appeal originally raised both relate to CH/4390/2003 and CH/4391/2003. First, it is said, as I understand it, that the decision is distinguishable because it relates to council tax and to a claimant who was not a council tenant. I accept that factually that appears to be correct. The fact, however, that council tax benefit alone was in issue in that decision does not affect the reasoning. Nor is it of assistance that the claimant here was a council tenant. The fact that that was his legal status does not mean that he was necessarily using the property for his main home or that he was not absent for extended intervals or had not sub-let it, however improperly. The decision was relied on by the tribunal solely for the proposition that periodic verification procedures are appropriate, and that is unaffected by the points of distinction.[36]Secondly, it is true that no reference was made in those decisions to the Johnson case, R. v. Liverpool C.C. ex p. Johnson (No. 2 ) [1995] COD 200 QBD. That was a case in which it was held that a local authority's powers to require the provision of information did not extend to requiring the claimant to attend its office for an interview or enable it to decline to determine the claim if the claimant did not do so. (The claimant's submission refers to declining the claim if the claimant does not attend, but that appears to be an error.) In my view, the case is not directly analogous to a case of refusal of a home visit, because clearly the observations of an officer of the local authority during the course of a home visit may produce material evidence on the question of residence, whereas it is not obvious what evidence would be furnished simply by attendance at the local authority's office. The statutory provisions empowering a local authority to require a claimant to furnish evidence or information, now contained in regulation 86(1) of the Housing Benefit Regulations 2006, S.I. 2006 No. 213 ("the 2006 Housing Benefit Regulations), and regulation 72(1) of the Council Tax Benefit Regulations 2006, S.I. 2006 No. 215 (the 2006 Council Tax Benefit Regulations"), oblige claimants to produce evidence which is reasonably required, not to attend at a particular place to provide the evidence. Paragraph 11 of CH/4390/2003 and CH/4391/2003 clearly envisages that the officer's presence at the claimant's home will produce evidence which could not be obtained elsewhere.[37]In any event, I agree with the view taken in CH/2555/2007 that the decision in CH/4390/2003 is not to be understood as a decision that the refusal of a home visit of itself entitles a local authority to supersede or revise a claim. It is a decision that in principle a local authority may reasonably require the claimant to provide information by way of a home visit and that the tribunal in that particular case did not err in law in holding that on the facts before her such a requirement had been reasonably made and the claimant had unreasonably refused to comply with it. The effect of regulations 11, 13 and 14[38]As appears from what Judge Pacey said on giving leave to appeal, as set out in paragraph 20 above, he also found the original grounds of appeal unpersuasive. The question he raised was whether it was sufficient for the tribunal to have found that the claimant failed to supply evidence and information which had been requested or whether the tribunal should have gone on to consider whether that was sufficient to give grounds to supersede. The local authority says, in effect, that provided that it acts reasonably and in accordance with the relevant statutory provisions in requesting the evidence and information, so that regulation 14 comes into play, that is the end of the matter. The local authority is then under an obligation to terminate the award.[39]That contention on the part of the local authority is not directly addressed by the claimant, who argues, in effect, that since the only point really at issue was his residence or otherwise at the property, the tribunal should have considered whether failure to make a home visit was sufficient to give the local authority grounds to supersede the decision awarding benefit, and that, in any event, the local authority should subsequently have considered, when the claimant's residence had been established for the purposes of the new claim, whether to revise or supersede its termination decision.[40]I accept the general principle, referred to by Judge Pacey and stated in paragraphs 41 and 42 of CH/2555/2007, that when a local authority is considering ending a claimant's award of housing and council tax benefit it must consider whether it has grounds to revise or supersede the decision awarding benefit in accordance with the statutory powers of revision and supersession given to it by the Decisions and Appeals Regulations. It is to be noted, however, that in CH/25552007 there was a substantial background of what appears to have been administrative confusion on the part of the authority concerned, coupled with examples of contradictory letters sent to the claimant apparently on the same day and a practice of generating letters in advance of their being sent. Judge (then Mr. Commissioner) Williams made clear in paragraph 42 that he entirely agreed with and accepted what was said in CH/2995/2006 and CH/402/2007 (now reported as R(H) 4/08 ) about ending an award under the power of "termination" given by regulation 14. It is therefore necessary to look carefully at those decisions.[41]The first point to emerge from such a consideration is that termination under regulation 14 is not to be treated as a means of ending an award which is distinct from revision or supersession. The two decisions examine in detail regulations 11, 13 and 14 of the Decisions and Appeals Regulations. So far as material, those regulations provide:
"11.(1) A relevant authority may suspend, in whole or in part - (a) any payment of housing benefit or council tax benefit; … 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 … or superseded … 13.(1) The relevant authority may suspend in whole or in part - (a) any payment of housing benefit or council tax benefit; … 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 [Social Security] Administration Act [1992] … (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 … 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 86 of the 2006 Housing Benefit Regulations or … regulation 72 of the 2006 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 [Child Support, Pensions and Social Security] Act [2000]. (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. 14.(1) A person in respect of whom payment of benefit … 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 … were so suspended, or such earlier date on which entitlement to benefit ceases.

(b) …"

[42]When housing benefit and council tax benefit decisions first became subject to an independent appeal process, by virtue of the provisions of Schedule 7 to the Child Support, Pensions and Social Security Act 2000, there was some uncertainty over the question whether a decision terminating entitlement to benefit under regulation 14 was a decision subject to appeal. Indeed, local authorities were initially advised by Circular A2/2006 that decisions under regulations 11 to 14 were outside the normal revision/supersession rules and that there was no right of appeal against termination decisions. The Secretary of State for Work and Pensions subsequently changed his position on that point, as explained in R(H) 4/08 . In that case it was decided that termination decisions do fit within the revision/supersession framework and are subject to appeal, on the ground that the cessation of entitlement constitutes a change of circumstances making supersession possible.[43]Judge (then Mr. Commissioner) Rowland, in CH/2995/2006, agreed with that decision. He went on, however, to draw attention to a number of difficulties which remain in relation to regulations 11 to 14. Where suspension is under regulation 11, the situation is as follows:
"21. The 2001 Regulations make adequate, albeit complicated, provision for [the situation] 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).

(a) "

Regulation 13(3) is not very happily drafted, in that it seems to require notice to be given to a claimant whenever a suspension takes place under regulation 11(2)(a) regardless of whether or not information is actually required, but clearly it would be nonsensical to require service of a notice saying that no further information was required.[44]The real difficulties arise in connection with the other situation identified by Judge Rowland, which he described as cases: "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." (paragraph 26) The suspension in that case was presumably intended to be imposed under regulation 13(1).[45]The difficulty with that approach which was identified by Judge Rowland is that the regulation 13(1) power is only exercisable in relation to persons who fail to comply with information requirements. "Information requirement" for these purposes has the meaning given by paragraph 14 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 (which applies also to paragraph 15, under which regulation 14 is made), namely, a requirement to provide evidence or information in pursuance of regulations made by virtue of section 5(1)(hh) of the Social Security Administration Act 1992 as respects housing benefit or by virtue of section 6(1)(hh) of that Act as respects council tax benefit. The significance of those paragraphs is, as Judge Rowland pointed out, that they enable the making of regulations enabling a local authority to require information or evidence not only in relation to a claim (power to make such regulations being contained in sections 5(1)(h) and 6(1)(h) of the 1992 Act) but also in relation to an award.[46]When he decided CH/2995/2006, it appeared to Judge Rowland that the only exercise of the powers given by those two provisions was the exercise in regulation 13(2). Since those provisions were only inserted into the 1992 Act by the Child Support, Pensions and Social Security Act, the general powers to require information or evidence then contained in regulation 73 of the Housing Benefit (General) Regulations 1987, S.I. 1987 No. 1971 ("the 1987 Housing Benefit Regulations") and regulation 63 of the Council Tax Benefit (General) Regulations 1992, S.I. 1992 No. 1814 ("the 1992 Council Tax Benefit Regulations") could not be said to have been made under those powers. On the footing that there had been no other exercise of the relevant powers, the consequence was that on one construction of regulation 13 (and perhaps the more natural one if the regulation is read in isolation), if a claimant failed to provide information requested under regulation 73 or regulation 63 in circumstances in which a question had arisen as to his entitlement, that failure would mean that the authority could, or was obliged to, serve him with a regulation 13(4) notice, but would not give rise to any power to suspend until there had been a failure to comply with the request for information contained in that notice. That would be so, although regulation 14 as now drafted would apparently cause the claimant's entitlement to cease immediately thereafter, making the suspension seem rather pointless.[47]In fact, the powers given by sections 5(1)(hh) and 6(1)(hh) were also exercised by the Housing Benefit and Council Tax Benefit (Decisions and Appeals and Discretionary Financial Assistance) (Consequential Amendments and Revocations) Regulations 2001, S.I. No. 1605, which by regulation 8(1) and (2) substituted a new regulation 63 in the 1992 Council Tax Benefit Regulations and a new regulation 73 in the 1987 Housing Benefit Regulations. Those substitutions took effect on 2nd July 2001, when the Decisions and Appeals Regulations also came into force. The new regulations therefore did indeed enable local authorities to impose requirements for the furnishing of information or evidence in relation to awards as well as claims and such a requirement constituted an information requirement for the purposes of regulations 13 and 14 of the Decisions and Appeals Regulations. The current (2008-2009) edition of CPAG's Housing Benefit and Council Tax Benefit Legislation is therefore mistaken in suggesting, in reliance on CH/2995/2006, that, at least prior to the consolidation of the relevant regulations in 2006, the power of suspension under regulation 13(1) would not arise until there had been a failure to comply with a requirement imposed by a notice under regulation 13(3) and (4). It follows that no question arises whether consolidating regulations could have the effect of achieving what would or might have been a change of substance.[48]The consequence is that substantial symmetry is achieved in the two situations identified by Judge Rowland. If payment of benefit has been suspended under regulation 11(2)(a), which necessarily means that there is a question of entitlement or whether the award should be revised or superseded, the claimant must be given a regulation 13(4) notice if the authority requires further information, and entitlement will then terminate under regulation 14 if the information is not supplied or the claimant does not satisfy the authority that the information does not exist or cannot be obtained by him. If the claimant has already failed to provide evidence or information under regulation 73 (now regulation 86 of the 2006 Housing Benefit Regulations) or regulation 63 (now regulation 72 of the Council Tax Benefit Regulations), payment is liable to be suspended under regulation 13(1) and if a question has a arisen in connection with his award, he also must be given a regulation 13(4) notice, potentially leading to termination under regulation 14. Claimants in both situations thus have an equal opportunity after suspension to salvage the position.[49]The point I have just considered is not directly relevant to the present case, since suspension was under regulation 11, but I have set out the position because, for the reasons I have given, there appears to me to be an error in CPAG's annotations to the legislation. The effect of Judge Rowland's decision, however, is also, as it seems to me, potentially to cast doubt on whether the local authority was correct to proceed under regulation 11. The original attempt at a home visit was, as I have said, made under the Verification Framework and was made on the basis that good administration involves periodic checking of entitlement to benefit. That is the second of the situations identified by Judge Rowland. It follows from his decision that the payment of benefit should not be suspended under regulation 11(2)(a) simply because checks are being made under the Verification Framework. That, I think, is the effect of the notes to regulation 11 in CPAG's Housing Benefit and Council Tax Benefit Legislation , with which I agree. Of course, that is not what the local authority did here; it requested information from the claimant in its letters of 26th January 2006 and 16th March 2006. On the face of it, the authority was heading towards regulation 13(1) territory. The question is whether it could then change tack and proceed under regulation 11.[50]In fact, I have come to the conclusion that the local authority could and did properly suspend payment of benefit to the claimant under regulation 11(2)(a), as it said it was doing. By the date of suspension, 26th March 2006, the local authority had paid two unsuccessful visits to the property and had had a response to only one out of three letters, despite having invited the claimant to contact the authority in the other letters. This appears to me sufficient to justify the local authority, in the absence of any warning or explanation from the claimant at that stage about the problems with the buzzer, in taking the view that a question had arisen about his entitlement which was sufficiently strong to justify suspension under regulation 11. This is potentially significant, since a period of at least four weeks is required to be given for compliance with a request for information under regulations 86 and 72 or their predecessors, so that the local authority would not, or at least might not, have been able to suspend payment of benefit by its letter dated 22nd March 2006 if it had had to rely on regulation 13(1).[51]There remains, however, the question of principle how far a local authority is obliged to consider whether a ground for revision or supersession exists in regulation 14 cases, or whether the effect of regulation 14 is that the local authority is obliged to make a decision superseding the decision by which the claimant was awarded benefit, with the consequence that the termination decision cannot thereafter be reviewed or superseded. In CH/2995/2006, Judge Rowland referred to regulation 14 as providing: ".. 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." (paragraph 22) In my view the terms of regulation 14 are such that once a failure to comply with an information requirement properly imposed under regulation 13 has been established, the only proper decision for a local authority to make on the claim is a decision superseding the decision entitling the claimant to benefit with effect from the date on which payment of benefit was suspended, subject to any exercise of the authority's power to extend the time for compliance with the requirement. It follows that the decision is not thereafter open to revision or supersession in the usual way.[52]On the other hand, as explained in paragraph 42, it was decided in R(H) 4/08 that an appeal lies against a decision terminating entitlement to benefit under regulation 14. I do not seek to set out exhaustively the circumstances in which an appeal might be successful, but in my view they must at least include:(1) that there has been no failure in compliance with an information requirement;(2) that the suspension of benefit, whether under regulation 11(2)(a) or under regulation 13(1), was not validly imposed;(3) that the requirements of regulation 13(3) and(4) were not properly followed. It is likely that claimants will be alert to circumstances of the first kind, but they are less likely to be alive to points of the other two kinds. I take the view that a tribunal can be expected, in performance of its inquisitorial function, to consider whether the statutory procedure has been properly followed, even where it is not contended that there has been no failure in that respect. A finding of failure to provide evidence or information which does not deal, even very shortly, with the validity of the procedure followed may therefore involve an error on a point of law. Procedure in this case[53]In the present case the tribunal found that it was common ground that the information had not been provided. The claimant's eventual submission, by the letter dated 16th January 2009 referred to in paragraph 26 above, that the tribunal made no inquiries to substantiate that fact, is extremely unattractive. I see no reason why the tribunal should have made inquiries on the point when there was nothing in the manner in which the hearing before the tribunal was conducted to suggest that there was any question of the information's having been supplied. It does indeed appear to have been common ground that the information was not in fact provided.[54]The tribunal also considered a substantial number of contentions which amounted to a challenge to the validity of the information requirement and dismissed them, as explained above. Unfortunately, there remains a further point, not raised by the claimant and not considered by the tribunal, which in my view means that a procedural error has occurred. That is, that the authority did not properly comply with the provisions of regulation 13. The point arises as follows.[55]It is clear that failure to comply with an information requirement is a condition precedent to the applicability of regulation 14. By its letter dated 22nd March 2006, referred to in paragraphs 6 and 7 above, the local authority pointed out to the claimant that he was a prescribed person for the purposes of sections 5(1)(hh) and 6(1)(hh) by virtue of regulation 13(2) and was therefore required to provide information under regulation 13(4). It very properly warned the claimant of the possible consequences of failing to comply with the request for information. What it did not do, however, was draw to the attention of the claimant the alternative set out in regulation 13(4)(b), that of satisfying the local authority that the information or evidence did not exist or could not be obtained by him. That, in my view, was a procedural error by the local authority which was not remedied at any stage.[56]As I have said, this point was not considered by the tribunal. That is very understandable, given the large number of points which were raised and were properly dealt with. Nevertheless, it seems to me that the tribunal ought to have gone on to consider whether the statutory procedure had been followed properly and that the failure to do so amounted to an error on a point of law. Further, the error was clearly material, in that if the tribunal had considered the point, the only proper conclusion, in my view, would have been that the statutory procedure had not been followed properly. It is on this ground that I set aside the decision of the tribunal.[57]I am required by section 12(2) of the Tribunals, Courts and Enforcement Act 2007, having set aside the tribunal's decision, either to remit the case for further consideration by the First-tier Tribunal or to re-make the decision. In my view, no useful purpose would be served by remitting the case. As Judge Rowland said in CH/2995/2006, regulation 14 is in effect a penal provision. Regulation 13(3) and (4) give the claimant a last chance to avoid the imposition of a penalty as a result of which he loses his benefit at least for a period, even if he can subsequently show that he satisfied the conditions of entitlement all along. It is understandable that local authorities should have such a sanction available, but equally the provisions of regulation 13(3) and (4) ought in principle to be complied with strictly before the sanction is imposed. In CH/2995/2006 Judge Rowland was dealing with a failure to specify the period within which the information was required to be provided, and expressed the view that cases in which failure to comply with regulation 13(3) could be overlooked would be very rare indeed. Although the failure here was different, that reasoning applies equally. I do not need to decide whether such a failure could ever be overlooked; it is sufficient to say that this is not such a case.[58]For those reasons, I re-make the tribunal's decision. My decision is that the claimant's appeal against the decision of the local authority terminating his entitlement to housing benefit and council tax benefit made on 2nd August 2006 is allowed. Further grounds of appeal[59]What I have already said is sufficient to dispose of the additional grounds of appeal mentioned in paragraphs 26 and 28 above.

(b) Consequences

[60]Although my decision is that the claimant's entitlement to benefit was not validly terminated under regulation 14, it does not follow that the decision awarding him benefit could not validly have been revised or superseded on some other ground if that is appropriate on the evidence. Clearly, however, the available evidence includes the evidence which was available in relation to the new claim made by the claimant on 3rd November 2006 and which showed that the conditions of entitlement were satisfied from 6th November 2006 onwards. If in all the circumstances the local authority does not revise or supersede the original decision awarding benefit, then it seems to follow that the decision on the new claim was the result of an official error leading to a mistake as to a material fact (namely, that the claimant was not already entitled to benefit under an existing award). (Signed on the original) E. Ovey Deputy Judge of the Upper Tribunal 14th May 2009

Cited in 1 later judgment