A claimant is protected under old HBR 11 (3) (b) but the Council still restricts rent and states within the determination “Unreasonable rent deduction”.

This then goes to the Appeals tribunal and where the Council now bases its case on one of alleged Contrivance under Regulation 7, although this was never included in any determination or previously suggested.

I defended the position by clarifying that the Tribunal should be looking at the wording on the determination and also demonstrated that there had been no contrivance.

The appeal was won and the tribunal confirmed as follows: -

“The Tribunal was not sure on the balance of probabilities that the agreement came within Reg 7(1)(1) of the HBR 1987. The onus of proof is on the respondent and the burden was not discharged.”

The fact that the Tribunal had missed the original basis of the determination was almost irrelevant because the appeal had been won. However, the Council has now immediately written stating the following: -

“I am pleased to inform you that the tribunal has decided that the rent increase was not contrived under Regulation 7 of the Housing Benefit Regulations.

However, the local Authority has made a new decision to restrict the rent increase to its current level of £90 per week for Housing benefit purposes, under regulation 12(1) (a), i.e that the rent increase is unreasonably high having regard to the level of increases for suitable alternative accommodation.”

1. Clearly an immediate and a knee-jerk reaction, can the Authority do this and if so under what regulation.
2. Should the Tribunal have properly considered the basis of the determinations rather than what the Authority said in its appeal papers?
3. However, if the Authority can summarily change its grounds for making a decision once it has lost a Tribunal, just what is the point of going to appeal in the first place?

Any help would be appreciated please.

The LA are being very lax with their wording. There is strcly speaking no such thing as contivance in the Regulations. It is a convenient shorthand used in Reg 7 cases to descibe taking advantage of HB.

In a case where "contrivance" has been proved unde Reg 7, no HB at all would be paid.

The Tribunal does not have to take into acount anyting not raised at the hearing by the parties and its decision is final. If the LA disagrees with it it can appeal to the Commisioners on a point of law.

Look carefully at the terms of the Tribunals decision. If the decision is that there should be no restriction, then that is it. The LA can not simply use anohter Regulation to circumvent it, it should have raised the matter at the hearing.

Very many thanks for your help.

May I be sure please - my concern is that the Authority has, only having lost the Tribunal, now redetermined to restricdt benefit using another Regulation, even though there has been no subsequent change in circumstances. They could have used this as grounds in the original determination but did not do so.

Can the Authority now redetermine, simply because it has ,lost an appeal at the Tribunal. (Tribunal was by written submissions)

If it can what is the point in appeal process?

Furthermroe, the Authority originally determined to restrict benefit on grounds of unreasonable rent, but the focus of its written submission was based around Reg 7 and which we rebutted. I also delat with issues relating to HBR 11 (old) in my submission but because the Authority moved away from this in its submission to the Tribunal, might it be argued that the reasons on the determinations were therefre not properly considered by the Tribunal as its decision was based on alleged contrivance only?

If that were the case it would seem inequitable because it was the Authority that changed the basis of its submission to the Tribunal and which we then had to defend.

Any help please.

Many thanks

Ray

You need to look closely at the Tribunals decision. If the Tribunal has decided that the rent should not be restricted that should be the end of it.

If the LA has "forgotten" to raise the issue of an unreasonable rrent increase in its submission, then it has still lost, the Tribunal did not have to consider it and it is too late for it to be considered now, so the full rent must be paid

If the issue was contrivance, and the Tribunal has merely ruled that the agreement was not contrived, then the LA is free to make the new decision, but there are fresh appeal rights.

The Council has a right to do this and the Tribunal could not have considered the amount of entitlement due (is my opinon).

It appears that the LA were arguing that there was no liability and /or if there was, the tenancy was not on a commercial basis. Until this matter is concluded, the LA cannot make a decision on entitlement. Without a decision on entitlement to consider, the Tribunal has nothing to revise. The LA cannot issue a "catch-all" decision along the lines of "you are not entitled to HB because we are treating you as not liable to pay rent but if a Tribunal finds you are, we will restrict the amount to x". Until liability is established, the LA cannot move on to the next stage.

A similar situation oftens occurs with backdating. The customer may get a refusal to backdate a claim overturned but that does not mean they are entitled to HB. All they are doing is establishing the date of claim. Similarly, the Tribunal could only establish that your client was liable to pay rent within the HB legislation.

For example, I can think of cases where the person could demonstrate "good cause for a late claim" but clearly failed on absence from home rules, student status or even income and capital. When TAS first came in, I tried to raise all the issues at the one hearing because it seemed to me that this made administrative sense to the LA and was fair to the customer for them to leave the hearing knowing whether they would be paid or not (which, after all, is the basic idea as you rightly suggest). The Review Board always accepted this approach. The first Tribunal I tried it at rightly rejected such an approach as wrong in law.

Finally, I suspect that whoever wrote the appeal papers for the LA realised that the Tribunal cannot consider a "mix and match" and that this explains the different approach.

I am afraid you will need to pursue a further and seperate appeal on the restriction, however time consuming this may be.

i'm not surprised Ray is disillusioned. what strikes me is the original disallowance was on grounds of unreasonably high rent, but was changed to contrivance at the appeal preparation stage. i am confused by this, as HB was paid at a restricted rate, but it implies that the original decision was revised, and a no entitlement decision given. your client actually appealed against the unreasonable rent restriction, if i've understoof correctly.

i'm wondering what the reason for the change of decision was. it ought to have been explained in the appeal submission, and if the LA's position was that the restricted rent decision applied if the contrivance decision fell, the tribunal should have been asked to consider that question in the written submission. if it was not included in the submission in such a case, it is very poor practice.

if the high rent decision was dropped because the LA felt it was weak, you may have a good chance in challenging the latest decision. i certainly agree that justice does not appear to have been done in your client's case, and wonder how long has all this been going on. You could try asking the LA to explain why it changed the rent restriction decision when client appealed it and has resurrected it (closely) on the client's winning his appeal. There may be an abuse of process complaint you could make, but i'm not knowledgeable in that area and could do with knowing more.

the LA's actions could be seen as demonstrating both a lack of objectivity and impartiality, and a lack of respect for the tribunal, and i wonder just what has been gained here.

jj

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?

It is hadrly surprising that you are confused, given the incoherance of the LA's submission.

I still think you need to look closely at the Tribunal's decision.

Given that the LA's decision was to restrict, then that is the decision under appeal, the issue of contrivance is an irrelevant distraction.

The LA restricted the rent and it was able to do so under the old Reg 11 or it could restrict the increase under Reg 12. Restriction under Reg 12 discretionary.

The proper time to exercise that discretion is the time of the decision under appeal.

I would ask for a full statement of reasons from the Tribunal, and include a copy of the LA's purported new decision for its attention and ask the Tribunal to make a ruling on its vires, given the finality of the Tribunal's decision, (and at the same time as a belt and braces measure execise the right of appeal against the new decision, just in case the chair has missed something)

The Result: -

I am pleased to say that with the help of all concerned, in particular Phil Shanks (Partners Foundation) that the Council has now agreed to award benefit without restriction and in compliance with the Regulations.

Sadly, it did this only after being told that the claimant had died!

Reasons for doing so were based upon having had a further look at the case and the unfortunate circumstances etc i.e the death of the claimant. I rather think the Council was glad of some reason to find to propelry award benefit but it was all so unnecessary.

The Tribunal could therefore have been avoided and the unnecessary time and effort from all parties avoided.

I think that it was only the common sense and knowldege of the HB Regs by the HB Manager that prevailed because a meeting with him was most helpful. He recognised immediately that the Authority should not have redetermined without a change of circumstances mid-benefit period.

It is very sad really because the Authority has really sharpened up on its HB and is generally doing very well - it is sad when something like this spoils an otherwise excellent performance.

Thanks to all for their help and which was appreciated.