Two HB decisions from the Upper Tribunal, Administrative Appeals Chamber have appeared, which are interesting because they demonstrate the approach of the Tribunal to the construction of the HB Regs (Torbay Borough Council v RF [2010] UKUT 7 (AAC) (14 January 2010)) and the Tribunal’s approach to appeal grounds (HN v London Borough of Brent [2009] UKUT 289 (AAC) (11 December 2009)).
RF had the good fortune (well, not for RF as it turns out) to appear before Emeritus Professor Nick Wikeley (he of Ogus, Barendt and Wikeley, The Law of Social Security) in his role as a judge of the Upper Tribunal. RF suffers from Crohn’s disease. He was sentenced to a term of imprisonment of 12 months on 16 July 2008 and was released on licence on 29 October 2008 (15 weeks later). It was clear at the time of sentence that his incarceration was to be between 14-17 weeks. The case concerns the 13 and 52 week rules for HB (Regs 7(13) and 7(16)/(17)). On the 13 week rule, RF argued that HB should be paid for the 13 weeks, and he would pay the outstanding rent. The problem was that his incarceration was likely to exceed 13 weeks and, on a literal reading of Reg 7(13) (which requires that the period of absence is unlikely to exceed 13 weeks), Wikeley J found against him on this point: “The approach suggested by the claimant – that the local authority meet his rent for the first 13 weeks and that he meet the balance thereafter – might seem superficially attractive. However, social security legislation does not generally permit this type of negotiated compromise. A person is either entitled to benefit or not entitled to benefit” (at [12]). RF was not entitled.
The 52 week rule, however, was a rather different matter because, on a literal reading, it applied to RF’s case. The issue was whether his claim fell within Re 7(16)(c)(iii); ie that he was “undergoing, or as the case may be, his partner or his dependant child is undergoing, in the United Kingdom or elsewhere, medical treatment, or medically approved convalescence, in accommodation other than residential accommodation.” The first tier Tribunal, which had found in RF’s favour on this point, had erred because it had applied an excessively literal approach to this provision. Wikeley J held that there has to be a connection between the medical treatment and absence from home. RF was absent from home because he had been incarcerated and not because of his need for treatment. Express provision is made for certain prisoners in Reg 7(16)(c)(i) and: “The very fact that special provision is made for one class of prisoner is a strong indication that other classes of prisoner are meant to be excluded. The Latin maxim, and principle of statutory interpretation, “expressio unius est exclusio alterius” (to express one thing is to exclude another) is apt here. So the very fact that remand prisoners away from home for more than 13 weeks are included in regulation 7(16) is an indication that convicted prisoners are excluded” (at [24]). Wikeley J then retreats into an excursus on the history of the temporary absence rule, noting the “conversation” (my word, not his) between the SoS and the Social Security Advisory Committee in 1995, which reinforced Wikeley J’s conclusions on the issue.
HN was heard by Lane J (as it turned out, to HN’s very good fortune) and concerned overpayments of HB and CT after HN had said that she was a lone parent between 16/09/02 and 16/01/07. The first tier Tribunal had held that she had been living with her partner, a finding which Lane J refused to disturb (and did not grant permission to appeal on this point on the basis that Tribunals only ever have circumstantial evidence to go on, the burden of proof is on the authority, and the Tribunal must make a decision on the balance of probabilities [which it had done here]). The overpayment claimed back was £58,797.14. Lane J, however, granted permission to appeal on a point not raised by HN which was that the overpayment should be reduced by the entitlement of her partner and by the birth of a further child (Reg 104(1)). As a result, the overpayment of HB was £3572.26, quite a significant difference and well-spotted by Lane J of his own volition.
One final point: Brent asked if they could recover half of the overpayment against HN’s partner, which was possible under the 1987 Regs. Lane J said that the new form of Regs did not allow for this save in cases of misrepresentation or failure to disclose a material fact (not applicable here). However, “The Authority does have a discretion to recover from a partner under regulation 102(1ZA) in certain circumstances. This provision is probably applicable at the enforcement stage, not least because (i) only a discretion is given, and (ii) any decision under this regulation 102 is not appealable to a tribunal (paragraph 1, Schedule, Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001)”.