Decision No: C17/02-03(IS)(T)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 28 September 2001
DECISION OF THE TRIBUNAL OF COMMISSIONERS
- This is an appeal by the claimant against the decision of the Appeal Tribunal sitting at Craigavon on 28 September 2002.
- Leave to appeal was granted by the Chief Commissioner on 6 December 2002. On 24 January 2002, the Chief Commissioner, in accordance with the powers conferred on him by Article 16(7) of the Social Security (Northern Ireland) Order 1998, directed that the appeal be dealt with by a Tribunal of Commissioners. The hearing took place before us in Belfast on 20 February 2003. We understand that since the hearing the claimant's father has died and express our sympathy to the family.
- We begin by putting this matter in context. The claimant had the misfortune to be injured in a road traffic accident in May 1985. She suffered physical injuries and was in a coma for several weeks. Her injuries included head and brain injuries from which she has never fully recovered. Everyone involved in this appeal is agreed that she is incapable of managing her own affairs. She lives with her parents. The evidence before us includes an application form, signed by her mother on 22 September 1997, applying to the then named Department of Health and Social Services to be appointed to act on the claimant's behalf in social security matters because of her mental or other incapacity. Her mother described the claimant as "petulant and irresponsible post head injury" and she went on to say that the claimant "is very petulant. The reasoning part of her brain is damaged + violent mood swings. Short term memory is poor". We have not seen a formal appointment but we proceed on the basis of the information supplied by the Department that the application did in fact result in the claimant's mother being appointed to act for her in social security matters. However, for reasons which will become apparent, one being that this appeal has been prosecuted not by the claimant's mother and appointee but by her father, the Official Solicitor to the Supreme Court was invited to take part. This she has done and we are extremely grateful to her for her assistance.
- As indicated, the claimant lives with her father and mother and the latter is her appointee. We shall refer to the claimant's parents as the, or her, "father" and "mother" or collectively as "parents". The claimant also has a brother who plays some part in the story. We shall refer to him as the "claimant's brother". The claimant is a single parent. She has a son who was born on 27 August 1992, and who will be 11 in August of this year. We shall refer to him as the "claimant's son". He lived with the claimant and her parents. We assume, there being no evidence to the contrary, that he and the claimant were looked after by the father and the mother. The property in which they live is a bungalow. It has an important role to play in this appeal. It is convenient to refer to it simply as "No 3".
- The hearing before us took place in Belfast on 20 February 2003. The claimant was represented by Mr Les Allamby, the Director of the Law Centre (NI). The Official Solicitor was represented by Mr Lannon of Counsel. The Secretary of State was represented by Mr Paul Bennett of the Decision Making and Appeals Unit of the Department for Social Development. The hearing required a considerable amount of research and preparation by Mr Allamby and Mr Bennett and we are grateful to them for their efforts. We have already expressed our gratitude to the Official Solicitor.
- For the reasons set out below, the Appeal Tribunal's decision is erroneous in point of law. We therefore allow the appeal and set aside the decision of the Appeal Tribunal. In exercise of the powers conferred upon us by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998, we give the decision which we consider that Appeal Tribunal should have given.
- Our decision is as follows. From and including 28 November 2000, the claimant is entitled to have included in the weekly amount of her income support, an amount in respect of her housing costs.
- That amount has yet to be calculated. If the parties cannot agree on a figure, an application should be made for the matter to be restored before such one or more of us as the Chief Commissioner may direct.
- This is an appeal against a decision of a decision maker said to have been given on 5 December 2000. According to the Social Security Agency's submissions to the Appeal Tribunal, that decision was a follows: -
"You are entitled to £47.10 per week Income Support from 28/11/00. This does not include an amount for housing costs. Housing costs are not applicable on a mortgage of £78,400.00 taken out in July 2000 for the purposes of house purchase. This is because [the claimant's] name is not listed as one of the borrowers. As a result she is not liable for or responsible for the housing costs in accordance with the legislation."
That decision can be explained as follows. The amount of income support which a person receives can include all or part of their housing costs. A person's housing costs can include all or part of the payments which he or she makes to a lender in respect of a mortgage secured on the property in which he or she lives. The claimant lived in No 3. It was her home. No 3 was mortgaged and monthly payments were required to be made to the lender under the terms of the mortgage. However, the decision maker decided that these provisions did not apply in the claimant's case because legal title to No 3 was vested in the names of her father and her mother and it was they who had covenanted to repay the amount lent.
- The principal and substantive issue in this appeal is whether the claimant is entitled to have included in her income support an amount in respect of what it is convenient to refer to as "her housing costs". Although we shall use that term throughout this decision, it is important to understand what, precisely, those costs are. They are the regular monthly payments which, we assume, comprise both repayments of capital and payments of interest, payable by the claimant's parents to a mortgage lender known as Southern Pacific Mortgage Limited ("SPML") under a mortgage by which a property which we shall simply refer to as "No 3" has been mortgaged to SPML to secure a substantial loan. This transaction is referred to in more detail later. The precise amount of those payments for which the claimant may be treated as responsible has yet to be agreed or determined.
- That issue has become refined during the progress of this appeal. Before us, the question was whether the provisions of paragraph 2(1)(b) of Schedule 3 to the Income Support (General) Regulations (Northern Ireland) 1987 applied to the claimant's circumstances.
- It is convenient to refer to the relevant provisions of the Income Support (General) Regulations (Northern Ireland) 1987. Regulation 17 of the 1987 Regulations lays down the general rule that a person's weekly applicable amount - by which is meant the amount of income support to which he or she is entitled - "shall be the aggregate of such of the following amounts as may apply in his case". There then follows a list of items or needs. One of these, regulation 17(1)(e), is: -
"(e) any amounts determined in accordance with Schedule 3 (housing costs) which may be applicable to him in respect of mortgage interest payments or such other housing costs as are prescribed in that Schedule."
Pausing there, we must stress that we are concentrating on the main, and specific, point which arises in this appeal. In any particular case a number of conditions must be satisfied before a person becomes entitled to have his or her housing costs met out of income support. We ignore those other conditions and concentrate on the provisions that are in issue before us. That is why we have expressed our decision in the terms in which we do.
- Schedule 3 to the Regulations is headed "Housing Costs". Paragraph 1 of Schedule 3 provides that the housing costs applicable to an applicant for income support include those costs: -
"(a) which he or, where he is a member of a family, he or any member of that family is, in accordance with paragraph 2, liable to meet in respect of the dwelling occupied as the home which he or any other member of his family is treated as occupying;"
Paragraph 2 then goes on to provide: -
"(1) A person is liable to meet housing costs where -
(a) the liability falls upon him or his partner but not where the liability is to a member of the same household as the person on whom the liability falls;
(b) because the person liable to meet the housing costs is not meeting them, the claimant has to meet those costs in order to continue to live in the dwelling occupied as the home and it is reasonable in all the circumstances to treat the claimant as liable to meet those costs;
(c) he in practice shares the housing costs with other members of the household none of whom are close relatives either of the claimant or his partner, and
(i) one or more of those members is liable to meet those costs, and
(ii) it is reasonable in the circumstances to treat him as sharing responsibility."
The decision maker and the Appeal Tribunal considered that these provisions did not entitle the claimant to have any part of the mortgage payments treated as her housing costs. The principle issue before us is whether they were right. Certain subsidiary issues arise which we must also address. However, before proceeding further it is necessary to set out the background and also the more recent facts in order to understand the principal issue.
The background
- This has been a matter of some concern to us. It gives rise to one of the subsidiary issues. Quite frankly, what happened in the past is not easy to determine. We have, however, been greatly assisted first by the Official Solicitor and then by Mr Allamby. On 11 February 2003, the Official Solicitor lodged submissions which, in the first six paragraphs set out the facts as she understood them. Those paragraphs are the result of both much research and a great deal of distillation. We do not think that what is said is controversial for present purposes although this may not be the case in relation to other jurisdictions. What the Official Solicitor says does not appear to differ in any significant sense from the corresponding background provided at the start of Mr Allamby's written submissions. We therefore propose to quote in full from what is said by the Official Solicitor and, for the purposes of our decision, to proceed on the basis that she is correct. The Official Solicitor's factual submissions are these: -
"1. On 16 May 1985 [the claimant] received damages of £140,000 in a High Court settlement in respect of injuries sustained in a road traffic accident on 15 May 1983. The damages were not ordered to be dealt with under the Mental Health legislation for reasons which my Office and the Office of Care and Protection have never been able to establish. I had contemplated professional negligence proceedings, however, the difficulty was in obtaining the medical evidence. It is always possible that [the claimant] was capable at the time of the settlement. In any event by the time my Office became aware of the case there appeared to be no doubt as to [the claimant's] incapacity.
2. After the settlement a property was purchased [that is, No 3] in the [the claimant's] name and she was registered as the owner of that property on 21 April 1986. Even though she should have had more than ample capital to purchase the property outright it would appear that £30,000 of the purchase price of £46,500 was raised by a mortgage provided by the Nationwide Building Society. For some reason the house was subsequently re-mortgaged using an advance from the Progressive Building Society, again in the sum of £30,000. The reason for this has never been established.
3. It would appear that at a later stage the mortgage account fell into arrears which the [the claimant] was unable to pay. It seems that [her] damages may well have been spent by others but again this has never been established. At this stage it was agreed that [the claimant's] brother would purchase the house from her. One explanation given for this was that it was a mechanism to protect [the claimant] from being financially exploited by unsuitable men she associated with. When the house was sold to [the claimant's brother] the purchase price on the contract was £70,000 but it appears that only £44,518 actually changed hands (this being the sum then required to clear the existing charge in favour of the Progressive Building Society). This mortgage was raised by [the claimant's brother] from Citibank Limited. [The claimant], her son and her parents continued to reside in the property in spite of the sale.
4. At a later stage [the claimant's brother] got into arrears with Citibank and to discharge the arrears he took a loan from his aunt and uncle, Mr and Mrs [X]. Unfortunately debt proceedings resulted and although the original loan was for £10,000, Mr and Mrs [X], on 24 September 1996, obtained a judgment against [him] for the sum of £18,757.39 plus costs. On 10th February 1997 Mr and Mrs [X] obtained an order charging land (on [No 3]) which was registered in the Land Registry on 13 March 1997.
5. The matter ended up in the Chancery Division of the High Court when the Official Solicitor was brought in to represent the interests of [the claimant] (the patient). This was around the end of 1997/beginning of 1998. By that stage the amount due to Mr and Mrs [X] was £25,379.69 and the sum due to Citibank Limited was £51,721.88. When the matter came before Mr Justice Girvan on 26 October 1998 he made it clear that he thought that the patient's position may not be improved by letting the matter run for the full three days originally planned (and bearing in mind the costs of the same). With counsel's advice at that stage I felt it appropriate to settle on appropriate terms. Essentially it was agreed that the premises should be sold to facilitate the payment of all debts due. After much procrastination about selling [the claimant's father and mother] managed to raise sufficient funds from Southern Pacific Mortgage Limited to purchase the property from their son [the claimants brother], at which stage effect was able to be given to the High Court settlement in that the relevant debts were paid. On 22 May 2000, having consulted with the patient, I witnessed her signature and signed on her behalf, the Occupier's Consent to Mortgage and Waiver of Rights form provided by Southern Pacific Mortgage Limited, I had rejected suggestions by [the claimant's father and mother] that [the claimant] should be a party to the mortgage. I had sought counsel's advice and he opined that, in view of the history of this case, we should be careful not to make the patient jointly and severally liable for any borrowings. Nonetheless, to enable the mortgage to go ahead I was prepared to seek the court's authority to sign the Occupier's Consent form on behalf of the patient (see order dated 22 May 2000).
[6.] Unfortunately the new mortgage fell into arrears and on 12 April 2002 Southern Pacific Mortgage Limited obtained an Order for Possession of [No 3], subject to a stay. On 7 October 2002 Master Ellison gave the mortgagor leave to enforce the Order for Possession."
- During the course of the hearing before us, we asked Mr Lannon whether the Official Solicitor had been appointed to be the claimant's controller in accordance with the Mental Health (Northern Ireland) Order 1986. His instructions were insufficient to enable him to deal with our enquiries then and there. We have since been supplied with a considerable number of orders made in the Family Division of the High Court by the Master of the Office of Care and Protection. The Official Solicitor is of the opinion that by an order dated 12 February 1998, the Official Solicitor was appointed controller ad interim for the claimant, that the appointment was in general terms and that that order has never been discharged. It is clear from that order, and indeed others, that the Official Solicitor has been so appointed. Having examined the bundle of orders in the light of our knowledge of the facts and the submissions that were made to us at the hearing, we see no reason to doubt that the order of 12 February 1998 has never been discharged. We therefore proceed on the basis that the Official Solicitor is, and has been since February 1998, the claimant's controller.
- That is a convenient point at which to turn to the more recent facts. However, before we do so, some comments are in order. With the exception of the orders made by the Master of the Office of Care and Protection, we have seen none of the court orders, documents or papers to which the Official Solicitor refers. It is, however, clear that for obvious reasons, she went to considerable lengths to ensure that the claimant was not liable to SPML, under the mortgage. The evidence before us includes a letter which the Official Solicitor wrote to the mother on 20 June 2001. In it she said that the claimant was regarded as a person under a disability under Part VIII of the Mental Health (Northern Ireland) Order 1986. Accordingly, "when the mortgage application was being processed the High Court was not prepared to authorise [the claimant] to join in the mortgage. In these circumstances it was simply not possible for [the claimant] to be made a party to the mortgage application". We assume, and proceed on the basis, that the Official Solicitor was successful and that no liability attaches to the claimant. We assume that the proceedings brought by SPML did not name the claimant as a party or, if they did, merely did so for the purposes of obtaining an order for possession against her. In other words, no money judgment was sought against her. Had one been sought, we are sure that we should have been told and reliance would have been placed on paragraph 2(1)(a) of Schedule 3 to the 1987 Regulations.
- Certainly, when SPML was asked to complete a form MI12 for the Social Security Agency, it declined to do so on the basis that the form MI12 was in the name of the claimant "who is not a party to the mortgage". See the letter from SPML to the mother dated 29 September 2000.
- Save for that, it is not part of our jurisdiction to attempt to unravel the awful complications that have arisen in relation to the ownership of No 3. Such unravelling, should it become necessary, is a matter for others for whom we can only express sympathy. In the circumstances we should be doing them no favours if we looked more closely at what has occurred. Further, it is not for us to point a finger at any individual and apportion blame. We do, however, feel that we should make two comments. First, and without saying who is to blame, the facts recounted by the Official Solicitor disclose a sorry tale of events. The claimant was badly injured, and is brain damaged and incapable of looking after her own affairs. She was, we assume, left in a highly vulnerable state. The damages she received have disappeared. There are well recognised procedures available for protecting the property of persons who are unfortunate enough to be in the position the claimant finds herself in. A house was bought so that the claimant could live with her parents. That was a sensible thing to do. However, despite the amount of damages she had received, only one-third of the purchase price was paid out of those damages. The remaining £30,000, was borrowed from a building society. We do not know if, at the time No 3 was bought, the claimant was employed and received wages. It seems unlikely. If she did not, then how was she to pay the monthly instalments or other payments which had to be paid to the building society? That has not been disclosed. Legal title to No 3 was first vested in her name. It appears that there has never been any trust document or anything of that sort. Later the legal title was transferred out of her name and into that of the claimant's brother. Later still it was transferred to her father and her mother. No 3 has been remortgaged three times. The amount secured upon it has increased from £30,000, to, first, £44,518 and then, on 30 June 2000, to £77,535. See the letter of 30 June 2000, from SPML which was before the appeal tribunal.
- It also appears likely that the father and the mother failed to inform the Social Security Agency of the involvement of the Official Solicitor and in particular that the Official Solicitor had been appointed the claimant's controller. That is an important matter. Where, as in this case, the Secretary of State appoints someone to represent another's interests in social security matters, that appointment automatically ceases when the Secretary of State is notified that a controller has been appointed by the High Court. See regulation 33(2)(c) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987.
- The Secretary of State now knows of the appointment of the Official Solicitor as controller and consequently the appointment of the claimant's mother, as her appointee, has now lapsed. This is a matter to which we shall return. It further appears that although the father and mother approached the Official Solicitor when SPML began possession proceedings, they failed to tell the Official Solicitor about this appeal and the reasons why it was necessary to bring it. The Official Solicitor's involvement in this appeal began when she was notified by the Chief Commissioner and invited to take part. It is most regrettable that the Official Solicitor was not informed by the parents of these proceedings at the earliest possible date.
- The other comment, or point, which we should like to put on record is that during the course of this appeal the claimant's father and mother have repeatedly stressed that, although the legal title is vested in their names, the claimant is the beneficial owner of that property. That is to their credit. On 5 September 2000, when responding to a written enquiry from the Social Security Agency, the mother said that No 3 had been vested in the claimant's brother's name as trustee for the claimant. It had been transferred into the names of the father and the mother because the claimant's brother had been sent to prison. In a letter dated 9 February 2001, the mother said "my name on the mortgage deeds is on behalf of [the claimant] and that she is the sole owner of the above address [that is, No 3]". The father gave evidence before the Appeal Tribunal. As we understand his evidence, he repeatedly stressed that No 3 belonged to the claimant and that the legal title was vested in his name and that of the mother as trustees for her. Again, the first of the grounds of appeal which he put forward on the claimant's behalf made the same point. In particular, his reference to "This benefit stopped – when the trustees name was changed on the house deeds".
- Before turning to the more recent history we should mention that the claimant has been receiving income support since, we are told, 1988 and that her weekly amount for at least part of that time has included an amount for housing costs. It appears, although this is far from clear, that after legal title to No 3 was transferred into the name of the claimant's brother, the element of housing costs was removed from her weekly applicable amount. That resulted in an appeal to a Tribunal. The appeal was successful because the Tribunal restored the housing costs element. We can say little about this because we have seen none of the relevant papers and have received no submissions about what happened.
- We can, however, deal shortly with one of the grounds of appeal advanced on behalf of the claimant. Her father has argued that the entire matter was determined by the Tribunal which sat in the past. He argues that nothing of substance has occurred which changes matters. He also argues that if it was right for the claimant's weekly amount to include an element of housing costs after legal title was vested in the name of the claimant's brother as trustee for her, then it was right that this should continue after the trusteeship was transferred to her father and mother.
- The short answer is that the decision of the earlier Tribunal does not bind us, the Appeal Tribunal or a decision maker making a fresh decision. The decision of the earlier Tribunal, if unappealed as appears to be the case, was binding on the parties but only so long as no fresh decision was required or made. Once it became necessary to make a fresh decision, the importance of the earlier Tribunal's decision diminished. The decision maker and the Appeal Tribunal, were bound to apply the law as it applied at the time of the fresh decision. No problems will arise where the view of the decision maker as to the relevant law coincides with the view expressed by the earlier Tribunal. However, if the earlier Tribunal applied the law incorrectly the decision maker must make up his own mind. The earlier decision is not legally binding on him. The correctness of his view of the law is an issue which can be appealed. That is what we are concerned with. Was the decision to refuse the claimant housing costs made in accordance with the law.
- Paragraph 5 of the Official Solicitor's summary took matters up to the point where No 3 had been re-mortgaged to SPML. For the record, there is in evidence a letter from SPML, dated 30 June 2000, addressed to the father and mother which begins "Welcome to Southern Pacific Mortgage Limited. I am pleased to confirm that completion of your mortgage took place on 30 June 2000 for the amount of £77,535.00." (A subsequent document issued by Southern Pacific Mortgage Limited refers to a gross advance of £79,500 and also to an "Advance (excluding fees)" of £78,400, so we are not entirely clear about the exact amount lent. However, the exact amount is not relevant for present purposes.) There is also in evidence a document issued by an organisation called Mortgage Agency Services, whose relationship to Citibank , if any, is not revealed, which states that the previous mortgage was discharged on 21 August 2000.
- The Official Solicitor's account reveals the extremely complicated background leading up to the new mortgage. However, according to the evidence before us, the first that the Social Services Agency heard of it all was when it received the following, brief, letter dated 25 August 2000, from the mother: -
"As of above date, could you please send all money for housing costs to: -
SPML
125 Kensington High St
London W8 5PA
Mortgage Ac No. …
The mortgage has been transferred from Mortgage Agency Services number two limited.
Thanking you in anticipation"
Pausing there, that letter is remarkably uninformative. Not surprisingly, it elicited a request for further information. The mother's response was received on 11 September 2000 and was as follows: -
"Because [the claimant's brother] who was her trustee is in prison the mortgage had to be transferred to the names of myself and my husband ([the claimant] is not considered fit to manage her own affairs). I would request that the situation that occurred in 1990 is not allowed to happen again. That was when [the claimant] was considered unfit and her brother's name was put on house deeds as her trustee. At that time housing benefit was disallowed until successful appeal which took a couple of years to resolve causing untold problems.
[The mother's signature]
PS As I am [the claimant's] appointed trustee please address all correspondence to me."
- The reference to "the situation that occurred in 1990" is, we think, a reference to the previous loss of housing costs as part of the claimant's weekly amount and their subsequent restoration by a Tribunal. That reference underlines what we are now about to say. The initial letter of 25th August 2000, and the subsequent reply just quoted are entirely inadequate and inappropriate. The claimant's father and mother were not putting forward a claim on their own behalf. They were acting on behalf of their mentally disabled daughter. They were aware that difficulties had occurred in the past. They were aware of all the problems referred to by the Official Solicitor. They were aware that the amount of the debt secured on No 3 had increased from about £45,000, to in excess of £75,000. Common sense should have told the mother and father that far more details needed to be disclosed than the simple statement that the mortgage had been transferred from X to Y. Housing costs are a very substantial element in the social security budget. It is an area where transactions often require to be carefully investigated. The mother referred to past delay. There have been complaints about the length of time the present appeal process has taken. The appeal process might well have been avoided had proper disclosure been made at an early stage. All the more so since the father and the mother were not acting on their own behalf but on behalf of the claimant.
- Details of the new mortgage were, eventually, disclosed and that led to the decision to disallow housing costs which is now under appeal. We shall consider that decision in a moment. However, to continue with events, on 31 January 2001, the mother wrote a letter stating that as the claimant was "no longer getting help with mortgage/rent allowance we wish to appeal against this decision". A few days later, on 9 February 2001, the mother wrote another letter in the course of which she said: -
"As the home will have to be given up if we cannot get help with rent/mortgage we would appreciate a quick decision."
That refers back to a paragraph which she had written in an earlier letter date 2 October 2000: -
"As I am in receipt of invalidity benefit and my husband is a disabled war pensioner we cannot keep up the [mortgage] payments without [the claimant's] contribution. …"
Representation
- Having set out the facts, it is now convenient to deal with a subsidiary issue namely the locus standi of the mother and of the father. We have referred to the initial appeal being by way of a letter from the mother. However, the signature which appears on that letter is in very different handwriting from the body of the letter. This is the case with most, if not all, the letters written by her. It appears to us that the mother has simply signed letters written for her by another. Further, after the appeal got under way, its prosecution was conducted by the father who never had the necessary authority to act on behalf of the claimant. Social Security Commissioners and the Tribunals below them must, like the ordinary courts, be extremely careful when dealing with the affairs of those who cannot look after their own affairs. For that reason, and because of other factors that have come to light in this matter, the Chief Commissioner requested the assistance of the Official Solicitor. He also requested submissions as to whether the appeal was properly constituted.
- We are grateful to the parties for their submissions. We deal with this issue as follows. We are only concerned with the claimant and her entitlement to housing costs. We are satisfied that the appeal was properly made by the mother. She has acted more or less throughout through the father and we are satisfied that he had her authority to so act. On the evidence before us it appears that the Department was never notified that the High Court had appointed the Official Solicitor to be the claimant's controller. If that is right, then the mother's appointment as the claimant's appointee was never determined under regulation 33(2)(c) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987. She had the necessary authority to bring the appeal and to prosecute it up to the hearing before us. We consider that, at the hearing, the claimant's interests were fully and properly argued by Mr Allamby and also by counsel instructed by the Official Solicitor.
- The position since the hearing is rather different. The Department knows of the involvement of the Official Solicitor. One way or another, and it matters not which, it has been notified. That being so, the mother's appointment has determined and she is no longer the claimant's appointee. In accordance with normal principles, the Official Solicitor steps into the mother's shoes in relation to this appeal. She is the person now empowered to act on behalf of the claimant. In particular, the payment of any moneys consequent upon our decision must be made to her or in accordance with her directions. How she disposes of those moneys is a matter for her after seeking guidance from the Master of the Office of Care and Protection or from such other sources as she considers appropriate. She is also the person to deal with consequential matters – such as agreeing the figures with the Department.
The decision of 5 December 2000
- One of the grounds of appeal was that either there was no decision disallowing the claimant her housing costs or else that that decision was favourable to her. That is, that she was awarded her housing costs. This was the subject of a great deal of debate before us and we wish to express our gratitude to Mr Bennett for the patient way in which he dealt with our questions. Again, we do not think it necessary to deal with the matter at length. First, we consider that a decision to disallow housing costs was taken. We are also satisfied that the decision was adverse to the claimant although, having seen reconstructions of the text and calculation which were probably contained in a letter dated 5 December 2000, we can understand why the claimants father was confused and thought that housing costs had been awarded. We have not found what we were shown easy to understand.
- We were told the following. There is no written copy of the decision. Instead, record of the decision is kept on a computer. There is, of course, nothing wrong with that provided it is possible to discover from the computer exactly what the decision was and, where appropriate, the reasons for it. Unfortunately, that does not appear to be the case. It is not possible to press a button and to receive, on screen or on paper, a decision which is immediately comprehensible to any reasonably educated person. Instead, what comes out is a screen print which is incomprehensible to anyone without specialist knowledge. This is because the information is presented both in minimalist form and in code. We have doubts about whether, even when the codes are understood, the screen print produces all the information which will be needed in many cases. When the information is fed into the computer, a letter addressed to the person claiming benefit – or in this case her appointee – setting out details of the decision in a comprehensible form is produced by the computer. Only one copy of that letter which, we were told, goes to the person claiming benefit is ever produced. The computer is a central computer. It is physically situated in England. No second copy of the letter is produced and sent to the local office of the Social Security Agency which is actually dealing with the matter. Further, the relevant programme does not permit the computer to produce at some later stage a duplicate of the letter that was sent out. Consequently if, as here, there is a dispute over what the letter actually said there is no way of producing a second copy. A "reproduction" can be made up from the screen print and from standard text which was usually inserted at the relevant time. However, this appeal has demonstrated that the accuracy of such a "reproduction" is questionable.
Did the appeal tribunal err in law?
- At the hearing before the Appeal Tribunal the case on behalf of the claimant was presented by the father. The legally qualified panel member (LQPM), who sat alone, referred to all three subparagraphs of paragraph 2 of Schedule 3. In our view he correctly stated that subparagraphs (a) and (c) did not assist the claimant. However, it will be recalled that subparagraph (b) reads: -
"(b) because the person liable to meet the housing costs is not meeting them, the claimant has to meet those costs in order to continue to live in the dwelling occupied as the home and it is reasonable in all the circumstances to treat the claimant as liable to meet those costs;"
In relation to that subparagraph, the LQPM said this: -
"… Regarding 2(1)(b) there is no evidence that the claimant's parents as mortgagors are not meeting the costs or that the claimant herself has to meet the costs in order to continue occupying the property. There is no evidence of imminent eviction. (See R(IS) 8/01 and R(IS) 12/94 and C15 14/93). Even if this were so the claimant would need to establish it was reasonable in all the circumstances to treat the claimant as liable. …"
We have sympathy with the LQPM. We are not at all sure that the father told him everything he needed to know. To be fair to the father, however, there was no reason why he should have known how the legislation worked. He was probably unaware of the need to explain fully that the mortgage with SPML was in arrears. The hearing before the Appeal Tribunal was on 28 September 2001. SPML obtained a possession order on 12 April 2002. We do not know when possession proceedings were brought, but they were likely to have begun in early March or February 2002, at the latest and to have been based on several months arrears. By late September 2001, the arrears situation must have been serious and proceedings must have been threatened.
- There was evidence (in the form of the two letters already referred to) before the Appeal Tribunal which should have alerted it sufficiently to make enquiries. It will be recalled that on 2 October 2000, the mother had written to say that she was in receipt of invalidity benefit and the father was a disabled war pensioner and that they could not keep up the mortgage payments without a contribution from the claimant. On 7 February 2001, she wrote that No 3 would have "to be given up if we cannot get help with the rent/mortgage". So even at that stage problems were developing. We consider that the Tribunal did err by failing to be alerted by those letters and to enquire what the current position was. There is no record in the LQPM's notes of any evidence about mortgage arrears. These, we consider, must have been serious if a possession order was obtained in April 2002. We consider that, in failing to make the necessary enquiries, the Appeal Tribunal erred in law. Additionally, the passage from the statement of reasons which we have quoted is against the weight of the evidence because the only evidence on the point before the Appeal Tribunal was that contained in the mother's letters.
- We therefore allow the appeal. We go on to give a final decision. It is now, we think, indisputable that the claimant was not liable under the mortgage in favour of SPML. However, in our view it has become obvious that the mortgage repayments were beyond the capacity of the father and the mother to meet on their own. They were liable to meet the mortgage payments but were unable to meet them in full. The claimant occupied No 3 as her home. If she wished to continue to live there then she had to meet the shortfall – even though she was not liable on the mortgage. Was it "reasonable in all the circumstances at the time of the decision under appeal to treat the claimant as liable to meet those costs"? If regard must be had to "all the circumstances" we think the answer can only be "yes". The claimant was brain damaged and unable to manage her own affairs. No 3 was bought so that she could live there with her parents and be looked after by them. She had lived there for years. She had a son who was born in 1992. Her parents must, we think, have assisted her in looking after him. If she had to leave No 3, arrangements would have had to be put in place for her care and that of her son. No doubt those arrangements would have been satisfactory. It was, however, better that she remain where she was. This consideration of all the circumstances must take place as the date of the decision under appeal. That being so the possibility that the possession proceedings have gone too far and that No 3 will be lost in any event is not a factor to be taken into account. We merely say that, on the basis of what we have heard, that was a possibility but not a certainty.
- We consider that that is enough to dispose of this appeal. A number of other points were raised but we do not think it necessary to rule on them. Mr Lannon raised a number of arguments based on the Human Rights Act 1998 and the European Convention on Human Rights. It appeared to us that, by the time he came to address us, he had begun to reconsider these arguments. If so, we consider he was right.
- We therefore allow the appeal and give the decision which we do in paragraph 7 above.
(Signed): J A H Martin QC
CHIEF COMMISSIONER
(Signed): M F Brown
COMMISSIONER
(Signed): J P Powell
DEPUTY COMMISSIONER
8 MAY 2003
