Westminster City Council v AT and Secretary of State for Work and Pensions (HB) [2013] UKUT 321 (AAC) (05 July 2013)

IN THE UPPER TRIBUNAL Appeal No: CH/2689/2010

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright

DECISION

The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Fox Court on 9.12.09 under reference 242/09/07312 involved an error on a point of law and is set aside.

The Upper Tribunal re-decides the appeal. Its decision is that the claimant (the first respondent on this appeal to the Upper Tribunal) was not entitled to housing benefit on the claim which she made for that benefit to Westminster City Council on 21.05.09.

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

REASONS FOR DECISION

1. This is an appeal by Westminster City Council from a decision of the Fox Court First-tier Tribunal (SEC), presided over by Tribunal Judge Nye, dated 9.12.09. I will refer to this from now on as “the tribunal”. Westminster City Council (“Westminster”) was the respondent to that appeal. The appeal to the tribunal was brought by the claimant (or her mother on her behalf). I refer to her in the rest of this decision as “the claimant”. The Secretary of State for Work and Pensions was joined as a second respondent to the appeal at the stage of the appeal to the Upper Tribunal. I shall refer to him from now on as “the Secretary of State”.

2. The tribunal allowed the claimant’s appeal from Westminster’s decision of 5.06.09 to the effect that she was not entitled to housing benefit on her claim of 21.05.09 for that benefit in respect of a privately rented property she was living in, in Westminster, with her mother. Westminster’s reason for refusing the claim was it was not reasonable to treat the claimant as liable to make payments in respect of the dwelling under regulation 8(1)(c)(ii) of the Housing Benefit Regulations 2006 (the “HB Regs”). The background to this decision was that the claimant at the time was 4 years old, her father was the tenant of the property but was in prison (and for a sufficiently long period to not be treated as still occupying the property under regulation 7 of the HB Regs), and her mother was a “person from abroad” and thus precluded from being entitled to housing benefit under section 115(1)(j) and (9)(b) of the Immigration and Asylum Act 1999. None of these facts were or are disputed.

3. The tribunal, in overturning Westminster’s decision, decided that the claimant’s claim for housing benefit should not be refused on the basis that she did not satisfy regulation 8(1)(c) of the HB Regs.

4. The easiest way to describe the background to this appeal and the issues arising on the appeal to the Upper Tribunal is to set out in full the directions I made on the appeal on 22 February 2013.

“1. This appeal was decided in [the claimant’s] favour by the First-tier Tribunal over 3 years ago. Permission to appeal was granted to Westminster City Council (“Westminster”) by District Tribunal Judge Hindley on 12.10.10. Upper Tribunal Judge Pacey, to whom the appeal was allocated when it reached the Upper Tribunal, on 6.06.11 directed there be an oral hearing of the appeal. The Secretary of state then applied, on 23.06.11, to be joined as party to the Upper Tribunal appeal proceedings, a request which Judge Pacey acceded to on 11.07.11. After written submissions were made by the Secretary of State and by the first respondent, the hearing of the appeal took place on 1.03.12. It was heard by Judge Pacey.

2. Since the hearing there have been further written submissions made by the parties, responding to matters that arose before and at the hearing. No written directions were made by Judge Pacey as to the matters to be addressed. However, it seems clear from the submissions subsequently filed that they concerned: (i) Zambrano, (ii) Wychavon DC –v- EM, (iii) non-dependent deductions, and (iv) the NINO requirement in section 1(1A) of the Social Security Administration Act 1992 (“SSAA”). The submissions closed on 12.10.12. The appeal was therefore in a position to be decided after that date.

3. Regrettably, since then Judge Pacey has had to be absent from the Upper Tribunal. It was thought that the absence would be temporary and that he would be in a position to address the decision on this appeal on his return to the Upper Tribunal in February of this year. Judge Pacey remains absent, however, and, although not indefinite, no firm or clear date is set for his return.

4. In these circumstances, and given that the tribunal decision is over 3 years old and that a number of other cases have been stayed pending the decision on this appeal, the appeal has been passed to me to deal with. I fully appreciate that this is far from ideal, especially as Judge Pacey had the benefit of hearing oral argument from the parties. However, it seems to me, having read all of the papers, that the lack of oral argument does really not prevent me from dealing properly with this case as the further arguments that arose at the hearing seem to have been fully canvassed in the submissions filed after it.

Provisional View

5. My provisional view, on the basis of the papers, is that:

(a) it is very strongly arguable that the First-tier Tribunal erred in law in not giving any, or any adequate, reasons addressing the rival contentions as to whether it was reasonable to treat [the claimant] as liable to make the rental payments;

(b) the tribunal’s decision should be set aside under s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (“TCEA”);

(c) the decision ought to be re-made by the Upper Tribunal as no further relevant facts need to be found: per s.12(2)(b)(ii) TCEA; and

(d) it is very strongly arguable that [the claimant’s] appeal from Westminster’s decision of 5.6.09 should be disallowed because at the time of her claim for housing benefit on 21.05.09 she needed to have but did not in fact have a national insurance number nor had she applied for one, and as such the terms of s.1(1A) of the SSAA precluded her from being entitled to housing benefit.

6. It is also my provisional view that I should decline to say anything on whether, had [the claimant] had a national insurance number at the time of her claim, regulation 8(1)(c)(ii) of the Housing Benefit Regulation 2006 (“reg 8”) would have applied on the facts of her case to treat her as liable to make payments in respect of the dwelling. It seems to me at this stage that any comments I make would be obiter and thus not binding on any future decision maker in any other like cases. Moreover, it is very likely that in this category of case - a very young child seeking entitlement to housing benefit because his or her parents are excluded by law from being entitled – the child will not in fact have had a national insurance number (“NINO”) at the time of the claim.

7. I should say a little more about why I have arrived at my provisional view.

Judge Nye’s reasoning

8. As to the Judge Nye’s decision and the reasoning for it, even if the focus is just on the reg 8 issue (and not on any natural justice arguments about Westminster not being present at the hearing or the failure of the tribunal to address the NINO issue) it seems to me very arguable that Judge Nye’s reasoning is inadequate.

9. In order for reg 8 to apply Judge Nye had to be satisfied of three matters: firstly, that the person liable to make the payments was not doing so; secondly, that [the claimant] had to make the payments if she was to continue to live in the home; and thirdly, that it was reasonable to treat [the claimant] as liable to make the payments. All three points required careful assessment of the factual situation as at the date of claim on 21^st May 2009 and reasons given as to why (a) [the claimant’s father and mother] were not in fact making the rental payments; (b) [the claimant] had to make the rental payments if she was to continue to live in the home, and (c) it was reasonable to treat her as liable to make those payments.

10. The tribunal’s reasoning and findings of fact on these issues rely exclusively on the submissions made on behalf of [the claimant] (see page 80). Whether by “submissions” the tribunal was confining itself to the written submissions made before the hearing on 9.12.09 or was including oral submissions made at the hearing is itself unclear. If the latter, nothing in the statement of reasons explains to the reader what those additional submissions were. That itself may amount to inadequate reasoning. Further, the statement does not explain what the relevance of [the claimant’s mother’s] evidence was (see page 67). As the statement of reasons does not refer to this evidence it has to be assumed that it was irrelevant to the tribunal’s conclusion.

11. Thus, proceeding on the basis that what the tribunal set its agreement with was only the written submissions made on behalf of [the claimant], consideration has to be given as to how those written submissions addressed the above three issues and addressed and answered any contrary submissions made by Westminster.

12. The submissions are at pages 28-35. They need to be looked at with Westminster’s written submission on the appeal at pages 4 and 5.

13. Westminster in its submission set out that reg 8 needed to be looked at in stages. As the submissions on behalf of [the claimant] do not disagree with this staged approach it has to be assumed that neither did Judge Nye. In any event, Westminster’s stages are plain on the face of reg 8.

14. The first issue was whether [the claimant’s father or mother] was not in fact making the rental payments. The answer seems obvious for [the father]: he wasn’t because he was in prison. But what of [the mother]? Whether as a matter of construction this issue arises under regulation 8(1)(b) or as part of the consideration of whether [the claimant] had in May 2009 to make the payments if she was to continue to live in the home because no-one else was making the payments, it seems very arguable that a proper analysis of the reg 8 issue had to address whether [the mother] at the relevant time was making the payments (or could have done so but wasn’t, as that arguably must be relevant to whether it is reasonable to treat another person as liable to make the payments). Westminster seems to have assumed that [the claimant’s mother] was not making the payments because she couldn’t get housing benefit. However, the relevant question was not whether [the mother] was making the payments by way of housing benefit, it is simply whether she was making the payments (or could have done so). This factual issue is not addressed in the written submissions made to Judge Nye on behalf of [the claimant].

15. On this basis it seems very arguable that Judge Nye erred in law in not addressing this issue in his reasons. It was plainly raised as an issue on the appeal by Westminster (its “first step” in paragraph 6.4 on page 4), and therefore the tribunal was obliged to address it: per para. 6(9)(a) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 (“CSPSSA”). Moreover the later evidence about [the mother’s] working (para. 20 on page 130, not dissented from by [the claimant] at para. 24 on page 148) indicates that this would not have been an empty exercise for Judge Nye to have conducted.

16. The second, and related, issue was whether [the claimant] as at May 2009 had to make the rental payments if she was to continue to live in the home. On its face that called for some consideration to be given to what would have resulted in terms of the tenancy if as at, or close, to May 2009 [the claimant] was not able to make the payments. Whether or not the focus was on an “immediate threat” to [the claimant’s] continued occupation of the rental property in May 2009 (see CIS/14/1993, SSWP –v- DP [2009] UKUT 225 (AAC) and AH –v- SSWP (IS) [2010] UKUT 353 (AAC), on the equivalent rule in paragraph 2(b) of Schedule 3 to the Income Support (General) Regulations), consideration very arguably had to be given by Judge Nye to this part of regulation 8. However, whether in fact [the claimant’s] continued occupation of the rental property was under any threat if she was not able to make the rental payments in May 2009 is not addressed by the written submissions made on her behalf to Judge Nye. In simply adopting these submissions Judge Nye, too, does not address this issue, and thus very arguably erred in law.

17. Having very arguably not addressed the first two issues, it is just as arguable, in my judgment, that Judge Nye had no proper basis for finding that it was reasonable to treat [the claimant] as liable to make the payments in respect of the dwelling.

18. It is for these reasons that my provisional view is that Judge Nye erred in law and his decision must be set aside.

The NINO requirement

19. If the above is the correct analysis and it falls for me to re-decide the first instance appeal, then at this stage there seem to me to be very powerful arguments for holding that [the claimant] was not entitled to housing benefit on her May 2009 claim for that benefit because she then needed to have, but did not in fact have nor had she in fact applied for, a NINO.

20. The key provision here is section 1(1A) of the SSAA. This provides that:

“No person whose entitlement to any benefit depends on his making a claim shall be entitled to the benefit unless subsection (1B) below applies in relation both to the person making the claim and to any other person in respect of whom he is claiming benefit”.

21. Entitlement to housing benefit depends on a person making a claim for it, so [the claimant’s] entitlement to housing benefit on its face means she had to (but did not) satisfy subsection (1B) of section 1 of the SSAA.

22. Furthermore, the words that apply to her, as the claimant of housing benefit, in section 1(1A), very arguably are “the person making the claim” rather than the “person in respect of whom [s]he is claiming benefit”, and therefore regulation 4(b) of the Housing Benefit Regulations 2006 arguably cannot assist her (so as to remove the NINO requirement), as it only applies to children where another person is making a claim for housing benefit in “respect of” them. But here [the claimant’s] case is predicated on her being the claimant and her mother not claiming in respect of her. [The claimant] very arguably cannot both be the claimant and claiming in respect of herself because section 1(1A) SSAA expressly draws a distinction between these two situations. Moreover, the reliance on the remarks of Lord Justice Richards in paragraph 28 of Wilson (at paragraph 5(3) of the submissions on behalf of [the claimant] at page 138 of the appeal bundle) is very arguably misconceived as it (a) fails to have regard to the words “both to the person making the claim and” in section 1(1A) SSAA, and (b) ignores the fact that in Wilson Mr Wilson was the claimant and the issue was whether he was also claiming housing benefit “in respect of” his wife.

23. In addition, I do not see at present any arguable basis for saying that regulation 82(3) of the Housing Benefit Regulations acts to make this analysis any different. Even assuming there is evidence that Westminster appointed someone else to make the May 2009 claim on [the claimant’s] behalf, all regulation 82(3) does is to allow that person to exercise any right of [the claimant] on [the claimant’s] behalf, but that still has the legal consequence the claim is made by [the claimant]. It does not mean that the other person is the claimant in his or her own right and is claiming in respect of [the claimant] (so as to invoke regulation 4 of the HB Regs). Nor do I understand that those acting for [the claimant] seek to argue for this result.

24. Whether or not the Secretary of State could, and would, grant a national insurance number to [the claimant] (per para. 5(1) on page 138 and para. 14 on page 169), the facts as I understand them are that at the time of the May 2009 claim for housing benefit by [the claimant] no national insurance number had in fact been allocated to her nor had she applied for one (para. 5(5) on page 138). Any grant of a national insurance number to [the claimant] after the May 2009 claim or the 5.06.09 decision would not, therefore, be a circumstance obtaining at the time of the decision in June 2009 and so would have to be discounted: per paragraph 6(9)(b) in Schedule 7 to the CSPSSA and R(IS)4/04.

CASE MANAGEMENT DIRECTIONS

1. The appellant and the respondents are directed to inform the Upper Tribunal within one month of the date on which this notice is sent to them whether they have any objection to the decision of the First-tier tribunal being set aside solely on the above ground(s), and to the Upper Tribunal substituting a decision to the above effect.

2. If the parties agree to this proposal, no further response to the appeal by either party will be required.

3. If there is any objection to the proposed decision of the Upper Tribunal, a detailed submission should be made setting out the basis on which it is argued that the above provisional view is incorrect, and whether a further oral hearing is sought (and, if it is, why). The other parties may then be given an opportunity of making further submissions”.

5. Both Westminster and the Secretary of State have filed submissions pursuant to the above direction in which they do not object to the tribunal’s decision being set aside and further do not object to the Upper Tribunal remaking the decision in the terms set out in paragraph 5(d) quoted in paragraph 4 above.

6. However the Law Centre which acts for the claimant has objected both to the setting aside of the tribunal’s decision and the Upper Tribunal deciding that the claimant was not entitled to housing benefit on her May 2009 claim. In a submission dated 26 March 2013 the Law Centre argues that the appeal to the Upper Tribunal ought to be dismissed, that if it is not and the appeal is allowed then the matter ought to be remitted to another First-tier Tribunal for decision, and that in either event the appeal to the Upper Tribunal ought to be considered along side one or more of the other cases that have been stayed pending the decision on this appeal. The basis for this last submission, as I understand it, is that if the lack of a national insurance number is fatal to this appeal and thus the argument on regulation 8 of the HB Regs becomes academic, a claimant on one of the stayed appeals may in fact have had a national insurance number at the relevant time and thus resolution of his or her appeal would bring back into central focus the arguments on regulation 8 of the HB Regs.

7. The Law Centre does not seek any further hearing before the Upper Tribunal to argue out these issues, and in my judgment no such hearing is needed as the remaining issues have all been adequately addressed in the various written submissions.

8. I reject all of the Law Centre’s submissions. In my judgment there is no good reason not to decide this appeal now and to decide it in the manner I suggested in the directions of 22 February 2013.

Joining this appeal with others

9. Dealing with the Law Centre’s last submission first, it is based, I fear, at least in part, on a misapprehension about the “other cases that have been stayed”. As far as I am aware, and I have sought to check this as best I can, there are no other cases at Upper Tribunal level that have been stayed pending the decision on this appeal. The stayed cases (and there may in fact only be one) are at the level of the First-tier Tribunal. There are therefore no other cases that can be joined to this one. I decline to further delay deciding this appeal until one of the other stayed cases below makes it to the Upper Tribunal. This appeal has already been much delayed and needs to be decided. In addition, the case(s) that have been stayed below may well benefit from the analysis given in this decision on the “NINO requirement”. Lastly, if a claimant in a stayed appeal below did in fact have a national insurance number at the relevant time (and that may well be doubtful given the claimant is likely to be a child), any live issue concerning the scope of regulation 8(1)(c)(ii) of the HB Regs is best worked out on that appeal.

Setting aside tribunal’s decision

10. For the claimant, the Law Centre argues that even if Judge Nye had addressed whether the claimant’s mother was in fact meeting (or was able to meet the rental payments), the answer would plainly have been that she was not and could not have met those payments. In effect, this is an argument that any error of law made by Judge Nye was not material.

11. In support of this the Law Centre argues that as Westminster said in its appeal response to the tribunal that “neither liable person [the claimant’s father and mother] is able to make payments”, that Westminster accepted that the claimant’s mother was not, and could not, make the rental payments without housing benefit. I do not accept this. On the evidence before me this seems, at best, to have been no more than an assumption that Westminster made; and not one which precluded or absolved the tribunal from enquiring into this area, especially given the later evidence of the claimant’s mother having been in paid employment at the relevant time.

12. I appreciate that on the figures now available it seems very unlikely that the mother’s earnings would have been able to meet the full rental costs (as well as other necessary weekly outgoings for her and her daughter). However, other, additional sources or income may in fact have been available (from friends or extended family). The relevant part of the test under regulation 8(1)(c) involves the tribunal in being affirmatively satisfied that “the person liable to make the payments [of rent] is not doing so” (my underling added for emphasis) . The error of law on the tribunal’s part was not enquiring into this area and making findings of fact as to whether, at the relevant time, the rent was not in fact being paid.

13. I should add that I can find no proper basis to remit this issue to another First-tier Tribunal to enquire into and make findings of fact on, as the appeal against Westminster’s decision of 5.06.09 fails because the claimant was required to have, but did not have, a national insurance number at the time of her claim (what I have termed “the NINO requirement”).

14. In any event, even if the tribunal did not materially err in law in not enquiring into whether the rent was in fact being paid, this still leaves the issue of whether, per regulation 8(1)(c), the claimant “[had] to make the payments if [she] is to continue to live in the home”. The Law Centre argue, again, that any error of law made by the tribunal in not addressing this issue is not material because had it done so “the answer would plainly have been that there was such a threat”.

15. However in so doing it is only able to refer to general submissions made to the Upper Tribunal as to what was likely to result, in terms of eviction, if rent was not being paid. By its nature this evidence is generalist and speculative and says nothing about whether as a matter of fact as at May and June 2009 the claimant had to make the rental payments if she was to continue to live in the dwelling. Furthermore, even if the rent account was 6 months in arrears (and the reference the Law Centre gives for this in its latest submission says nothing about any rent arrears): (i) those arrears were said to have accumulated in the 6 months up to 26 October 2009 and so must have been quite a lot less by 5.06.09, and (ii) in any event, the level of arrears says nothing about what action (if any) the landlord was taking at the time to stop the claimant living in the home. It is therefore entirely unclear to me even now that Judge Nye’s error in not looking into this area was not material (i.e. that he was bound to conclude that the claimant had in May and June 2009 to make the payments of rent in order to continue living in the dwelling).

16. I also do not accept the argument made by the Law Centre on behalf of the claimant that Westminster took no point on this and accepted “that the aspect of the threat of occupation had been met”. I do not read anything in what Westminster said in paragraph 6.4 of its appeal response the tribunal as conceding this issue: indeed in paragraph 6.4 Westminster says that regulation 8(1)(c) of the HB Regs has to be considered (and “considered” here means by the tribunal) in steps and goes on “[t]he second step is deciding whether [the claimant] has to make payments to continue living in the home”. That issue was therefore plainly one that was being put before tribunal for it to decide.

17. The Law Centre also rely on the case-law I referred to in paragraph 16 of the 22 February 2013 directions as showing that the threat of the loss of the dwelling as a home need not be immediate. That may be true. However that takes nothing away from the fact that the tribunal made no, or at least no sufficient, enquiry into whether there was in fact any threat (immediate or otherwise) to the claimant’s continued occupation of the home as at May and June 2009. Thus the error of law on the part of Judge Nye – not addressing whether the claimant’s continued living in the dwelling was in fact under any threat at the relevant time – was a material error of law.

18. There is also here no proper basis for remitting this issue to another First-tier Tribunal to enquire into and make findings of fact on, as the appeal against Westminster’s decision of 5.06.09 fails in any event on the NINO requirement.

19. It is for all of these reasons that the tribunal’s decision of 9.12.09 was erroneous in point of law and must be set aside.

Upper Tribunal’s Decision on the Claim

20. In my judgment, what I have termed the NINO requirement is fatal to the claimant’s claim for housing benefit made on 21.05.09 succeeding. This is essentially for the reasons I gave in my earlier directions. Therefore the correct decision to make on the appeal from Westminster’s decision of 5.06.09 is that: (i) the appeal is dismissed, (ii) the decision of Westminster dated 5.06.09 is upheld, and (iii) the claimant was not entitled to housing benefit on her 21.05.09 claim.

21. The Law Centre rely on its earlier submission of 22.02.12 (page 138) to the effect that the claimant was not required to comply with s.1(1A) of the Social Security Administration Act 1992 (“SSAA”). It is conceded (on page 138 – para. 5(5)) that if compliance with s.1(1A) SSAA is required, the claimant had at the relevant time (i.e. May to June 2009) made no application for a national insurance number nor could she be treated as having made such an application.

22. The argument made on page 138 seeks to rely on regulation 4(b) of the HB Regs and its terms that “[s]ection 1(1A) of the [SSAA] (requirement to state national insurance number) shall not apply…(b) to any child or young person in respect of whom housing benefit is claimed”, as showing that the claimant did not need to have a national insurance number when she made her May 2009 claim for housing benefit. In effect, the argument is that when that claim was made the claimant was not only claiming for herself but also in respect of herself.

23. I do not accept this. This is for two, related reasons.

24. First, the quote from SSWP –v- Wilson [2006] EWCA Civ 882; R(H) 7/06, relied on by the claimant on page 138 is taken out of context and fails to recognise that Mr Wilson was claiming for himself and, as the Court of Appeal held, in respect of his wife.

25. Second, and just (if not more) importantly, regulation 4 of the HB Regs has to be read consistently with s.1(1a) SSAA which, in the context of who needs to have a national insurance number, clearly draws a distinction between “the person making the claim” and “any other person in respect of whom he is claiming benefit”(underlining added for emphasis). The terms of s.1(1A) SSAA in full are:

In short, the person who claims housing cannot also be the person in respect of whom the claim is made. Read in this (proper) context, the claimant here was claiming for herself and not in respect of herself and so she cannot benefit from regulation 4(b) of the HB Regs. She therefore had to have, or have applied to have, a national insurance number at the date of the May 2009 claim, and the absence of this is fatal to that claim for housing benefit succeeding.

26. I should add that I do not find anything said by Lord Justice Richards in para. [29] of Wilson, now relied on by Law Centre on behalf of the claimant, as undermining this analysis. In fact the rest of para. [29] (regrettably not quoted by the Law Centre in its most recent submission), supports the above analysis. What is said in para. [29] in Wilson is:

“It is unsurprising that the primary legislation does not use the same language in the case of housing benefit, since the benefit is not necessarily referable to persons other than the claimant: where a claim is made by a single person living on his own, the benefit claimed will generally be referable only to the claimant. There are many cases, however, where the benefit is referable to other persons as well, in that it is quantified by reference to them. In those cases the benefit can properly be said to be claimed in respect of those other persons”.

27. The phrase “referable only” is manifestly not being used as a synonym for “in respect of”, and what this passage tell us, wholly consistently with the wording of s.1(1A) SSAA, is that the phrase “in respect of” covers people other than the claimant.

28. In summary therefore: (a) Westminster’s appeal to the Upper Tribunal succeeds because the tribunal erred in law in not making addressing the constituent parts of regulation 8(1)(c) of the HB Regs; and (b) Westminster’s original decision refusing housing benefit is upheld because the claimant did not have a national insurance number at the time of her claim for housing benefit in May 2009.

(Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 5^th July 2013

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