By Dave
17/12/2011

HB round up

Three decisions of the Administrative Appeals Chamber of the Upper Tribunal on HB matters stand out: SS v North East Lincolnshire Council (HB) [2011] UKUT 300 (AAC); MB v Royal Borough of Kensington & Chelsea (HB) [2011] UKUT 321 (AAC); MR v Bournemouth Borough Council (HB) [2011] UKUT 284 (AAC).  If anything binds them together, it is the failure of the first tier tribunal to get to grips with a case, the problems caused by non-attendance of the Claimant or the attendance of the  unrepresented Claimant, and the ability of the Upper Tribunal (by contrast) to nail the issues.

In SS, the issue arose because the first tier tribunal signally failed to approach the proceedings in the correct way in the absence of the Claimant.  It simply rubber-stamped the decision of the local authority without exercising its inquisitorial function properly or at all.  As Wikeley J pithily observed,

The First-tier Tribunal appears to have lost sight of those basic principles [concerning revision and supersession decisions] in this case.  I am not convinced that the local authority’s staff ever had proper sight of them.  The tribunal simply adopted wholesale the summary of facts as presented by the local authority’s decision maker …, as being “not … facts in dispute”.  Yet they clearly were in dispute in several important respects.

The disputes were substantial and material from the Appellant’s perspective and the local authority’s case had been “confused from the outset” ([14]) and actually, as the facts suggest, got worse with decision-making processes which were “at best obscure” ([27]).  Wikeley J remitted the matter back to a different first tier tribunal, in the absence of full evidence enabling him to make a decision there and then, but with the ringing words that, where the decision-making process has been so far defective or non-existent that there has never been a valid basis for a determination against the Appellant, in an extreme case the whole process can be held to be abortive and the appeal summarily allowed.

In MB, the matter was slightly more complicated because of the underlying allegations of fraud on the part of the Appellant, but the issues are interesting and important.  In essence, the Appellant was the legal owner of a property in Ireland and the first tier tribunal had found that the ownership of that property placed her outside the capital rules for entitlement to HB.  They had done so, however, without considering the laws of Ireland regarding beneficial ownership, or indeed without really applying any law about beneficial ownership as far as I could see it.  MB, who began as a litigant in person and was refused leave to appeal as such, was subsequently granted permission and was successful after the intervention of the Free Representation Unit, and it is right to point out that she was represented by Giles Robertson (FRU’s Treasurer), who did (by the account of Wikeley J, for it is he again) a fantastic job.

Mr Robertson demonstrated that the law on beneficial ownership was different in Ireland to England and Wales, and that it was unclear whether MB had any or what entitlement to the property in equity.  The key point, though, was that it was Irish law which was required to be applied in the circumstances.  As regards whether her interest was worth more than £25k, the first tier tribunal had also failed to apply Reg 48, regarding the valuation of capital held outside the UK.  He was also successful on another ground which was that the first tier tribunal had simply accepted statements as to MB’s income from two “accountants”, although that evidence was suggested by MB to have been provided for different purposes (to get a tenancy), without considering the contrary evidence of MB herself.  Although Wikeley J had regarded this submission as “unattrative”, Mr Robertson made the (wonderful) point that the argument was “advanced not because of its beauty but because of its truth” ([47]; it’s worth reporting that just for the sake of its brilliance).  The first tier tribunal hadn’t given any reasoning as to why it supported those statements over MB’s and was, therefore, flawed.

Mr Robertson was, however, unsuccessful on an evidential point of significance.  The local authority’s position was that MB was the legal owner of the Irish property; it was for her to disprove her entitlement.  Wikeley J agreed, although this required MB to prove a negative, ie non-ownership.  However, the point was that “a claimant must to the best of his or her ability give such information to the [local authority] as he reasonably can, in default of which a contrary inference can always be drawn” (Kerr v Department for Social Development [2004] UKHL 23, [63], Baroness Hale, citing CIS/5321/1998).

I’ll leave it there but suffice to say that things aren’t looking good for MB, and one might suspect that she will need to have Mr Robertson on speed dial.

And finally, we have MR, which is the odd one out being a decision of Paines J, but it seems to me to be of some significance in relation to resettlement of offenders.  The significant question was which rule was to be applied where the claimant had been recalled to prison to serve the remainder of a sentence and was on remand for another alleged offence.  Reg 7(13) of the HB rules applies to an absence which is unlikely to exceed 13 weeks where the person intends to return to the dwelling.  Reg 7(16)-(17) disapply that rule in the case of a person detained in custody on remand, where the rule is that the period of absence must not exceed 52 weeks.  Paines J held, after receiving submissions from the Secretary of State, that the latter rule applied to MR as he was unable to read the regulations in any other way ([20]).

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