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[2007] UKSSCSC CH_2638_2006 (05 July 2007)

CH 2638 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This appeal by the claimant is brought by my leave granted on 13^th September 2006 and succeeds. In accordance with the provisions of section 8(5) of the Child Support Pensions and Social Security Act 2000 1991 I set aside the decision made by the Doncaster Tribunal on 5^th April 2006 (reference U/01/003/2006/00107). I substitute my own decision to the effect that the claim for housing benefit made by the claimant on or about 7^th November 2005 be treated as made on 16^th June 2005 (or on the date of the expiry of the previous award) and that the claimant be treated as continuously occupying the relevant dwelling as his home from the expiry of the previous award to the commencement of the subsequent award from 7^th November 2005. I remit to the housing authority questions relating to the calculation and payment of any arrears on this basis.

2. As happens far too often in these cases, the submission from the local authority is poorly prepared, key documents are missing, and neither the law nor the legal procedures governing decision making and appeals appears to be understood properly.

3. The claimant was born on 26^th July 1960. He was entitled to and in receipt of housing benefit from the local authority ("the authority") on the basis that he was receiving income based JSA. On 27^th June 2005 the Department for Work and Pensions ("the DWP") informed the authority that as from 3^rd June 2005 there was no entitlement to JSA because the claimant was "no longer attending". He had been due to register or sign on with the DWP on 17^th June 2005 but on the previous day had been taken into custody in one of HM's prisons. It later emerged that the claimant had previously been released from prison on licence but had been recalled to prison.

4. On 28^th June 2005 the authority notified the claimant (in a letter to his home address) that it had suspended payment of his housing benefit because "The Social Security have told us that your circumstances have changed". The notification requested details of the claimant's means and warned him that unless the information was provided by 29^th July 2005 "we will have to end your benefit". No reference was made in that letter to the claimant being in prison or not being at his home address (page 12).

5. The file contains a note dated 12^th July 2005 of two telephone conversations on that date between the authority and a person called "Richard" at the prison, who stated that the claimant would not be released until February 2006. I do not know what status or authority "Richard" had, or on what his information was based (page 13). Accordingly that piece of evidence has no real value to the issue to be decided in the present case.

6. On 12^th July 2005 the claimant wrote from prison to the local authority confirming that he had been taken into custody on 16^th June 2005 "and I will not be released within a 13 week period" (page 14).

7. The authority has stated that the claim was "terminated" on 26^th August 2005 and that there was no entitlement to housing benefit for the period 20^th June 2005 to 6^th November 2005. I can find no copy of any decision to this effect and I suspect that no such decision was made on 26^th August 2005. The dates do not make sense because it could not have been known on 26^th August that entitlement would recommence on 7^th November. Presumably, however, there was some kind of decision.

8. It seems that the normal procedure is for a prisoner recalled on licence to have an oral hearing relating to recall as soon as can be arranged. Although the claimant first requested such a hearing on 3^rd August 2005, there was a backlog of cases (page 51) and his could not be heard until 20^th October 2005. On 26^th October the Parole Board decided that his recall had been justified but that his confinement was no longer necessary for the protection of the public. He was released on that day. I observe that although the Parole Board had a target of 55 days from a request for the setting of a hearing date to actually considering the matter, in the claimant's case the period was in fact about 78 days. Even the 55 day target has been declared by the High Court to be unlawful as not conforming to the provisions of article 5.4 of the European Convention on Human Rights (R (Cooper) v Parole Board (The Times 6^th June 2007)).

9. On 4^th November 2005 the claimant made a new claim in respect of the same home address (his tenancy having been kept open). On page 30 of the claim form he asked for the benefit to be paid as from 22^nd October 2005. The award seems to have been made as from 7^th November 2005, although again I can find no copy of the decision.

10. On 6^th December 2005 the claimant told the authority about how his parole hearing had been delayed and asked that his new claim be backdated to 20^th June 2005 (page 49). A letter of 12^th December 2005 to him from the authority (pages 53 to 54) contains a clumsily worded decision not to backdate his benefit entitlement (and an incomprehensible comment on the circumstances of his imprisonment). On 16^th December 2005 the claimant replied to the authority that his hearing should have taken place within 7 or so weeks, and that if the authority could not change its decision he wished to appeal (pages 55 to 56). It seems to me that the appeal was against the decision not to backdate, contained in the letter of 12^th December 2005. It was not against the earlier decision to "terminate" the previous award, against which there seems to have been no appeal.

11. The tribunal considered the matter on 5^th April 2006 and confirmed the decision of the local authority. It gave no explicit consideration to the question of backdating but decided that there was no entitlement to housing benefit for the period 20^th June 2005 to 6^th November 2006 because of the operation of the provisions of regulation 5(8)(c) of the Housing Benefit (General) Regulations 1987. It found as fact that at the time of the recall to prison "the balance of the term to be served was until February 2006" and the "the [claimant] unequivocally acknowledged that that he would not be released within 13 weeks".

12. These findings did not amount to an adequate basis for the tribunal to make its decision and for this reason its decision was made in error of law. 13^th February 2006 was the date of the expiry of the original sentence of imprisonment in respect of which the claimant had been released and then recalled (page 55). In light of the parole system and the various early release schemes there is no basis for saying that the claimant was likely to remain in prison until that date, only that he would not remain in prison (unless convicted of a further offence) beyond that date. I deal below with the relevance of the claimant's own expectation.

13. On or before 27^th June 2006 the chairman of the tribunal refused the claimant leave to appeal to the Commissioner against the decision of the tribunal. He now appeals by my leave granted on 13^th September 2006. The local authority opposes the appeal and supports the decision of the tribunal. The Secretary of State has declined to be joined as a party (submission of 16^th January 2007 at page 101 of the file).

14. I assume that for present purposes the actual date of claim was such as to give rise to entitlement to housing benefit from 7^th November 2005. Provisions for backdating the claim are to be found in regulation 72(15) of the Housing Benefit (General) Regulations 1987, which states:

72(15) Where the claimant makes a claim in respect of a past period (a "claim for backdating") and, from a day in that period up to the date of the claim for backdating, he had continuous good cause for his failure to make a claim, his claim in respect of that period shall be treated as made on –

(a) the first day from which he had continuous good cause; or

(b) the day 52 weeks before the date of the claim for backdating,

whichever fell later.

15. The regulations provide no further assistance on what is to be regarded as "good cause". In relation to other social security legislation a Tribunal of Commissioners held in R(S) 2/63 that good cause is:

" … some fact which, having regard to all the circumstances … would probably have caused a reasonable person of his age and experience to act (or fail to act) as the claimant did".

This is often cited but, it seems to me, says very little in reality. Essentially, whether good cause exists is a question of fact (as indicated by the Court of Appeal in Chief Adjudication Officer -v- Upton [1997] 2 CLY 4668; see also paragraph 4 of CH/2659/2002).

16. On the basis of the confusion over the authority's decision making process, the claimant's recall to prison, the necessary restrictions on life as a prisoner, the initial uncertainty about the likely date of his release hearing and the confusion about his likely release date, I have no hesitation in finding that the claimant had continuous good cause from 20^th June 2005 (the effective date from which the termination of the previous award had effect) until the actual date of claim on or about 7^th November 2005. That leaves the question of entitlement in respect of that date of claim.

17. So far as is relevant, regulation 5(8) of the Housing Benefit (General) Regulations 1987 provides:

5(8) … a person shall be treated as occupying a dwelling as his home while he is temporarily absent therefrom for a period not exceeding 13 weeks beginning from the first date of that absence from home only if –

(a) he intends to return to occupy the dwelling as his home; and

(b) …; and

(c) the period of absence is unlikely to exceed 13 weeks.

Regulation 5(8ZA) applies this rule to a person detained in custody under a sentence imposed by a court.

18. The first date of absence was 16^th June 2005 (see CSH/0499/2006). Was the absence likely to exceed 13 weeks? I agree with the conclusions of the Deputy Commissioner in CH/1237/2004 (which has also been approved by Commissioners in other decisions) to the effect that (in the case before me) the period of likely absence has to be calculated from the date the claimant left the house, that if at any point it becomes clear that an absence not originally expected to exceed 13 weeks is in fact likely to exceed 13 weeks, an award may be superseded for change of circumstances, and that the test of likelihood is objective and the claimant's own view is relevant but not determinative. The tribunal in the present case erred in law in treating the claimant's own prediction of his release date as determinative.

19. The tribunal made no findings as to the original sentence or the circumstances of the recall to prison and made no enquiries from any official who might be able to give evidence on the likely outcome of the parole hearing as it seemed on 16^th June 2005. Such evidence might have come from a Prison Governor or one of his or her officials, or from the Home Office (now replaced by the Ministry of Justice in respect of such matters) or from those concerned with administering the probation and parole systems. Unfortunately, I estimate that it is now too late to obtain reliable evidence from any such source.

20. The claimant informs me, and I accept, that the original sentence was imposed on 14^th February 2003 in relation to 20 offences involving the use of a computer. The sentence was imprisonment for 15 months but he was in fact released on licence on 29^th September 2003. After his release on licence he created a web-site discussion forum for those in a similar position to the one he had been in. There were allegations in relation to this web-site and, although no charges were brought, he was recalled to prison.

21. Doing the best that I can with the evidence that is available, it seems to me it should have been predicted as at 16^th June 2005 that the hearing would take place within the 55 day target period, that representing the policy at the time even if such policy was later to be found to be unlawful. Assuming that it would take a little while for the claimant to organise a request for a hearing, the hearing would still have taken place well within the 13 week period. Although the actual result of the hearing would not have been known at the standpoint of 16^th June 2005, the evidence that was before the hearing would have been the same as the evidence on which the recall was based, and it could be predicted that the claimant's release would be ordered at the hearing. It should have been predicted that this would all probably be accomplished within 13 weeks.

22. For the above reasons, this appeal by the claimant succeeds.

H. Levenson

Commissioner

5^th July 2007