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[2003] UKSSCSC CH_5299_2002 (18 June 2003)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under paragraph 8(4) and (5)(c) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000.
2. 1. The decision of the Maidstone appeal tribunal under reference U/45/174/2002/00001, held on 9 August 2002, is erroneous in point of law.
3. 2. I set it aside and remit the case to a differently constituted appeal tribunal.
4. 3. I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision.

The appeal to the Commissioner

5. The issue in this case is whether the claimant would suffer exceptional hardship. His local authority, Medway Council, decided that he would not. On appeal, an appeal tribunal confirmed that decision. The claimant has appealed to a Commissioner. The local authority is the respondent on the appeal.
6. The case comes before on me on appeal to a Commissioner against the decision of the appeal tribunal brought with the leave of Mr Commissioner Angus. The local authority resists the appeal. The case has been transferred to me for decision.

How the tribunal went wrong in law

7. The tribunal had to investigate and determine whether the claimant would suffer exceptional hardship.
8. The meaning of that expression is a matter of law. The words used and the expression as a whole are ordinary ones in the language. Their context in the Housing Benefit (General) Regulations 1987 does not require them to be given a different meaning. So, the words bear their ordinary meaning in their context.
9. The issue for the tribunal was then one of application, not definition. How were those words to be applied to the facts of this case?
10. The tribunal separated the word 'exceptional' from its companion 'hardship'. It then defined 'exceptional' as 'unusual'. Neither approach was appropriate. By isolating one word from its companion, the tribunal removed the shades of meaning that a word derives from its context. Words have a range of meanings. The context can both limit and extent the possible location of meaning for a word within its range of meanings. By substituting one word for another, the tribunal removed some of the nuances of meaning. No substitute is ever perfect. Each word carries nuances of meaning that cannot always be captured in dictionary definitions.
11. The tribunal should have applied the expression as a whole and without substitution of a supposed synonym.
12. The tribunal then made a more serious mistake. It applied the word 'unusual' to what the claimant did and why and with knowledge he did it, rather than to the hardship that he might suffer as a result. I accept that the tribunal in terms used the words 'there was nothing unusual about the hardship that was being suffered', but the context shows that the tribunal applied the test to what the claimant did and what the claimant knew, and not to the consequences. Hardship is determined by the consequences of actions for the claimant. Those consequences arise from, but are different from, the actions of the claimant and others. They are also different from the knowledge that the claimant had before he acted.
13. Finally, I agree with the claimant's representative that the tribunal placed too much emphasis on the claimant's knowledge of, and anticipation of or ability to foresee, the consequences of what he did. It did so to the extent that it must have misdirected itself in law. That is, I suspect, just another way of making my previous point.

Other issues

14. I have noted what the local authority has written about the discussion at the hearing – page 166. It will be able to make raise that issue at the rehearing. As far as this appeal is concerned, it is sufficient to record that it may have been discussed at the hearing, but it did not form part of the tribunal's written reasons.
15. I have also noted the issue about the payment of rent in advance by the claimant's son and whether it was a loan. That is a matter of fact which can be reinvestigated by the appeal tribunal at the rehearing in the light of the evidence produced to it.

Summary

16. I allow the appeal and direct a rehearing.

Signed on original

Edward Jacobs Commissioner 18 June 2003