Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 15 May 2013 at Aberystwyth under reference SC943/11/00234) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is: there were no grounds to supersede the decision awarding a state pension credit to the claimant. His original award remained applicable on and from 12 July 2009. This is subject to any subsequent supersession on other grounds.

Reasons for Decision

1.         This case concerns the value of the claimant’s interest in his former home, which remained occupied by his wife, son and step-son. The latter had mental health problems. The First-tier Tribunal obtained and relied on a District Valuer’s report. That valuation was based on an assumption that there had been a hypothetical application under the Trusts of Land and Appointment of Trustees Act 1996. On the basis of that report, the tribunal dismissed the appeal.

2.         The First-tier Tribunal gave the claimant permission to appeal to the Upper Tribunal and the case came before me at an oral hearing in Cardiff on 14 July 2014. Mr Cooper attended on behalf of the Secretary of State.

3.         The Secretary of State’s representative in Leeds had made a written submission, arguing that the tribunal had not gone wrong in law. Mr Cooper adopted that submission on the issues it covered, but argued that there was another ground on which the tribunal had gone wrong in law. Drawing on his experience as a former family law practitioner, Mr Cooper argued that the Valuer’s assumption was unrealistic in the circumstances of this case. Although no divorce proceedings were in place at the time, any application under that Act would be likely to generate such proceedings by the party who was likely to obtain a more favourable outcome under the Matrimonial Causes Act 1973. He argued, therefore, that the evidence relied on by the tribunal was flawed.

4.         The result was that Mr Cooper supported the appeal. That left the issue of disposal. He suggested that I could decide that, on the state of the evidence, the Secretary of State had not shown any grounds to supersede the previous decision awarding a state pension credit. Alternatively, I could allow the Secretary of State the chance to decide whether to try to obtain another valuation on a more realistic basis. He pointed out that (i) the case had already been heard twice by the First-tier Tribunal and (ii) circumstances had now changed as the claimant and his wife had divorced and a settlement made, leading to a further supersession.

5.         I decided to take the second course out of fairness to the Secretary of State. I allow the officers in Leeds one month in which to indicate whether they were content to accept a decision in the form suggested by Mr Cooper or would like the chance to obtain a further report with a view to the Upper Tribunal making its own decision in due course. A representative has now replied that the Secretary of State is content to accept a decision in the form proposed by Mr Cooper. That decision is given above.

6.         As the decision is given with the consent of the parties, I am absolved of the duty to give reasons by virtue of rule 40(3)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008. I trust that what I have said so far is sufficient to indicate the basis of my decision.

 

Signed on original on 1 September 2014

Edward Jacobs Upper Tribunal Judge