Many thanks for the replies and which serve to illustrate the Authority’s lack of focus regarding the appeal and the confusion it has caused.
The original determination(s) clearly said benefit restricted because of unreasonable rent. Had there been any suggestion of contrivance then they should not have restricted but presumably completely stopped the payment of Housing Benefit as none would have been payable.
Peter from Camden has suggested that the LA were arguing that there was no liability and/or if there was, the tenancy was not on a commercial basis. I do not think that is what the LA did on the basis of its confused submission and which used such astounding grounds as “the landlord has a knowledge of Housing benefit as he has made many appeals before” and other spurious irrelevant submission. (That comment alone should give some indication of the quality of the LA’s submission and argument)
It seems that the LA had restricted because of unreasonable rent level without any consideration of contrivance – had contrivance been the case, the restriction should have been in its entirety and not just part of the benefit. There was never a question of liability – that had previously been agreed and benefit paid since 1995 – it was only when the needs of the individual increased and additional facilities and space were provided that the LA made the rent restriction as the rent increased to compensate for the increase in accommodation available. It had previously paid HB in full.
It is probably because the LA had no real grounds to properly argue its case against restriction under old REG 11 (3) (b) that it changed its emphasis to REG 7 for the Tribunal. That forced me to address this issue for the Tribunal, although all of the evidence regarding Rent Restriction and which I had also covered in my submission was provided in the papers to the tribunal.
SHOULD THE TRIBUNAL BE INVITED (IF IT MAY) TO RECONSIDER ALL OF THE EVIDENCE AND TO CONCENTRATE ON THE ISSUE WHY THE BENEFIT WAS RESTRICTED AS PER THE DETERMINATION?
The Welfare Rights Advisor from Saltley and Netchells law Centre, Birmingham, I think sums up the whole position in his first sentence.
However, whilst Benefit was paid at a restricted rate there was never a no entitlement decision given as suggested – benefit was always awarded and the client did appeal against the unreasonable rent decision – not the alleged Reg 7, because until the tribunal, that had never been raised as an issue.
It was never a case that the restricted rent decision applied if the contrivance decision fell – THAT WAS NOT INCLUDED IN THE LA’S WRITTEN SUBMISSION.
I therefore wonder if it might be argued that the case before the Tribunal was strictly in accordance with the determinations and which made no reference to Regs 7 or 12 and the basis of the appeal as submitted by the claimant, not necessarily the subsequent submissions. That the LA chose to argue Reg 7 and which was successfully defended is their choice – the Tribunal considered the LA’s case and it lost.
If as the LA is now suggesting, Reg 12 applied, then surely it had a duty to determine this from the outset and it cannot suddenly introduce it now simply because it has lost its case.- surely, the determination should have stated Reg 12 or referred to it – to introduce it now is surely a fundamental breach of the claimant’s rights?
Surely there is a case of gross maladministration and natural justice not being done (or seen to be) if the LA is now using as a means of avoiding the Tribunal decision, evidence that it had from the outset, could have referred to the tribunal but failed to do so.
Is it not simply that, there has been no change of circumstances since the original determination which would allow the LA to re-determine benefit, or can the LA re-determine again, even where they may have been no further change in circumstances?
The more I think about this the more confused I become – any further views please?
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