Hi guys,

This one is probs quite simple but I think I may have complicated it for myself and now my brain won't take anymore.

I've got a client who was refused HB under reg 9(1)(h) as LA stated he was not under practical compulsion to sell. Decision made 25/07/06.

Client appealed on 18/01/2007 and won his appeal on 29/05/2007.

Local Authority appealed to Commissioner and decision of 29/05/07 was set aside on 10/04/08.

Whilst the case has been proceeding a reported Commissioners decision was given on 22/01/2007 supports my client's contention that he was under a practical compulsion to sell.

My question is simply this. the Tribunal can only consider the facts of the case as they subsisted at and upto the date of the original decision i.e. 25/07/2006. Is there anyway I can introduce the Reported Commissioner's decision of 22/01/2007 in support of client's case?

Thanks guys, any suggestions would be much appreciated as my client is at risk of losing his home if we can't get the decision of 25/07/2006 overturned.

I'm assuming the CD in question is R(H) 6/07.

There is no reason why the CD cannot be introduced at this time, because it changes nothing with regard to the interpretation of the law (at least in my view). As such, the principles considered in that CD are the same as those subsisting at the time of the original decision. However, in any case, a CD cannot in or of itself support the FACTS of a case - only the interpretation of the law relating to those facts. Even then, the weighting given to *apparently* identical facts may vary from case to case if there are OTHER factors that are not the same.

You haven't said whether or not the case is being remitted for a new Tribunal hearing, or whether the Cmmr is going to make his own decision. If it's at Tribunal, the whole case is up for grabs (subject to any directions by the Cmmr). If the Cmmr is going to make a decision, then any new evidence will only be considered at the discretion of the Cmmr.

If new evidence is to be produced (and allowed), one of the hurdles your client will still need to cross is to demonstrate that s/he looked at all of the options available and didn't simply sell up without looking into the alternatives - that precise point is addressed in the same CD and follows other CDs on the same point.

I'm guessing the above isn't quite what you were hoping for, but I hope it helps anyway.

“An amendment to the law counts as a change of circumstances, but a decision of a court or commissioner that the law has been wrongly interpreted does not" (CPAG p 1075 – CAO v McKiernon (1993) CA).

Thus a CD on another case is not inadmissable as it is not classed as a change of circumstaces since the initial decision was made.


I make no comment on the merits of the case, incidently.

Thanks Kevin D and Nevip. The advice is much appreciated and helps greatly with this particular case.

Cheers, Pip01

A CD can't change the facts of your client's case.

I would want to have the new CD at least referred to me to look at. I could then decide what if anything to do with it & I could be obliged to explain myself later.

Philip Boyd