DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the Southampton First-tier Tribunal dated 28 October 2009 under file reference 203/09/00413 involves an error on a point of law and is set aside.  The appellant’s appeal against the City Council’s decision dated 23 October 2008 is remitted to be reheard by a different First-tier Tribunal subject to the Directions below.

 

This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

The following directions apply to the re-hearing:

 

(1) The re-hearing will be at an oral hearing.

 

(2) The new tribunal should be differently constituted from the First-tier Tribunal which considered this appeal at the hearings on 30 April 2009 and 28 October 2009.

 

(3) The City Council should advise the First-tier Tribunal within one month of the issue of this decision whether it proposes to take any further decisions revising or superseding the decision under appeal in the light of its disclosure of the information that the appellant owned a property elsewhere which was rented out.

 

(4) The City Council should in any event prepare a supplementary submission for the new tribunal which should include a clear schedule or table detailing the individual and aggregate capital value of the appellant’s account holdings as at e.g. the first day of each month and also at key dates in the history of the case (e.g. as at the date of the claims in question and at the date of any reviews).  That supplementary submission should be sent to the regional tribunal office within one month of the date of issue of this decision.

 

These directions are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

 

 

 

 

 

 

 

 

 

 

 

REASONS FOR DECISION

 

The decision in summary

 

1. The appellant’s appeal to the Upper Tribunal is allowed.  The decision of the Southampton First-tier Tribunal dated 28 October 2009 under file reference 203/09/00413 involves an error on a point of law.  The appeal tribunal’s decision is therefore set aside.  The Upper Tribunal is not in a position to substitute (or “re-make”) its own decision for the one that the First-tier Tribunal made.  This means that the appeal will need to be re-heard by a different First-tier Tribunal in Southampton.

 

2. The appeal raises a number of tricky legal and evidential issues.  There are also further matters that have come to light as a result of the City Council’s submission to the Upper Tribunal. It may well be in the appellant’s interests if she were to seek expert advice from an organisation such as a Citizens’ Advice Bureau (CAB) or other advice centre specialising in welfare benefit issues.

 

A summary of the issues at the heart of this appeal

 

3. The legal issue at the heart of this appeal is whether the appellant had capital in excess of £16,000 at the time of her claims for council tax benefit.  If she did not, then subject to the income means test, she was entitled to council tax benefit for the relevant periods.  If she did, then she was not entitled and there would have been an overpayment, or “excess payment”, of council tax benefit (CTB) which she would be liable to repay.  Indeed it appears from correspondence on file that she is currently repaying overpaid CTB on a weekly basis.  

 

4. To narrow the issues rather further, the case may ultimately turn on the true ownership of some of the funds in the appellant’s bank and building society accounts.  The appellant argues that a substantial part of these funds actually belonged to her daughter.  The City Council disagreed, and took the view that the savings in question all belonged to the appellant, taking her over the £16,000 capital limit for CTB.  In short, the First-tier Tribunal adopted the same approach as the City Council.

 

The claims for council tax benefit

 

5. The appellant claimed CTB from 2 December 2004, stating that she had no savings (see doc 24).  The claim was later “cancelled” by the City Council as from 5 June 2006, on the basis that they had no proof of the appellant’s income.  In fact it appears that she started work in August 2006.  She made a further claim for CTB from 20 February 2007, declaring savings of just £112 (doc 60).  That claim was subsequently “cancelled” by the City Council as from 18 June 2007.

 

6. I have put the word “cancelled” in inverted commas as in law the City Council has no power to cancel claims for, or awards of, CTB.  It does have various statutory powers to suspend, supersede or revise awards, which it was presumably referring to when using the expression “cancelled”.

 

The City Council’s decision under appeal

 

7. On 23 October 2008 the City Council “reviewed” and then “cancelled” the awards for the period 24 January 2005 to 5 June 2006 and from 26 February 2007 to 18 June 2007 on the basis that the appellant in fact had over £16,000 in savings (doc 92).  The City Council stated that there was an overpayment of CTB of £1,203.28.

 

8. On 16 January 2009 the appellant wrote disputing this decision, stating that “nearly nine thousand of these monies belonged to my daughter.  I had been saving them for her as she wished to travel at a later date” (doc 94(a)).  She then appealed (doc 96), stating that “some of the money in my account belonged to my daughter as I transferred it to her account at the beginning of August [2008] as she was going travelling to New Zealand at the end of August”.

 

9. The City Council’s submission to the tribunal included copies of various bank and building society accounts, which it stated showed that the appellant had undeclared savings.  It argued that she had some £48,000 in total in October 2004 and £25,000 in June 2007.  The City Council argued that there was no evidence that £9,000 of the savings belonged to the appellant’s daughter.  It suggested that the transfers to the daughter may have been gifts or attempts by the appellant to deprive herself of capital.  In the alternative, the City Council argued that even if £9,000 had belonged to the daughter, then the appellant still had savings of her own in excess of £16,000 at all times (see also doc 196).

 

The First-tier Tribunal’s decision

 

10. The Southampton First-tier Tribunal considered the case over two hearings (an adjourned hearing on 30 April 2009 and a final hearing on 28 October 2009).  It undoubtedly faced a difficult task.  This was an appeal with a bundle of papers running to nearly 200 pages, a large proportion of which were copies of bank and building society statements.  Unfortunately the City Council’s submission to the tribunal did not include a detailed schedule or grid showing the balances in the various accounts at various times and highlighting particular transactions which were seen as problematic.  Instead, the First-tier Tribunal simply had a couple of sides of narrative discussion of the evidence (see section 7 of the submission and doc 196).  A clear schedule, showing the account balances and totals say on the first day of each month over the relevant period and also at key dates (e.g. dates of claims and reviews), would have been of great assistance to the tribunal and may have prevented some of the problems which subsequently arose.

 

11. The First-tier Tribunal dismissed the appeal and confirmed the City Council’s decision.  The Decision Notice stated that “the monies the Appellant alleges that she held in Trust for her daughter cannot be disregarded as she had done nothing to renounce ownership and control of the monies and there is insufficient evidence to show that it was her intention to voluntarily give up an interest in the monies which were within her Nationwide Account at all times.”  The Decision Notice also stated that a (credit card) debt owed by the appellant could not be disregarded.

 

12. The First-tier Tribunal also issued a more detailed Statement of Reasons for its decision. At this stage I need refer to only one of its findings of fact, namely that the appellant had “admitted in oral evidence [that she] had full use of all monies within her various Nationwide accounts which she could use as and when she wished without restriction”.  The tribunal also ruled that the credit card debts could not be taken into account and that the appellant’s capital was over the limit set by regulations 33 and 34 of the Council Tax Benefit Regulations 2006 (SI 2006/215).

 

13. I should also just mention in passing that it would have helped if the tribunal’s Statement of Reasons had sequentially numbered paragraphs from the beginning to the end, rather than having “Facts found” paragraphs numbered 1 to 10 and the “Reasons for decision” separately numbered 1 to 5, along with some unnumbered introductory paragraphs.

The appellant’s grounds of appeal to the Upper Tribunal

 

14. The appellant put forward two grounds of appeal.  First, she argued that regulations made in 2006 could not affect events that took place between 2004 and 2005.  Second, she denied that she had admitted at the hearing that she had use of all the monies: “in fact I denied it as that would have been stealing”.

 

The City Council’s arguments on the appeal to the Upper Tribunal

 

15. The City Council’s submission to the Upper Tribunal resists the appeal and argues that the First-tier Tribunal’s decision was correct and should be confirmed.  Its position in short is that the appellant had more than £16,000 in savings at all material times, which she had not disclosed on her CTB claim forms, and that she had accordingly been overpaid CTB.

 

16. The City Council also points out that the appellant had been asked to provide evidence of the use to which a cheque payment from one of the appellant’s accounts of £30,359.36 drawn on 17 March 2005 had been put.  She had, it said, not produced any proof that it had been paid against her mortgage as she had claimed.  There is nothing in that particular point. The tribunal judge accepted the appellant’s oral evidence that the monies were used to reduce the mortgage on her property (Facts, paragraph 10) and was quite entitled to make that finding.  The City Council also makes a number of observations on various other aspects of the case to which I return to further below. These relate especially to another property owned by the appellant.

 

The Upper Tribunal’s conclusions on the appellant’s own grounds of appeal

 

17. There is nothing in the appellant’s first ground of appeal.  As the tribunal judge explained in his Statement of Reasons, regulations 33 and 34 of the Council Tax Benefit Regulations 2006 simply replaced provisions to the same effect in earlier legislation (the Council Tax Benefit (General) Regulations 1992 (SI 1992/1814). In any event the general rule is that only debts which are actually secured on capital are deducted when calculating a person’s capital assets.  An ordinary unsecured debt, such as a tax liability, cannot be offset against the value of a person’s capital (see Social Security Commissioner’s decision R(SB) 2/83). 

 

18. I am unable conclusively to resolve the second ground of appeal.  The tribunal judge’s finding is referred to at paragraph 12 above.  It may well be that the first part, namely that the appellant had “admitted in oral evidence [that she] had full use of all monies within her various Nationwide accounts” is a finding of fact, whereas the rest of the sentence – “which she could use as and when she wished without restriction” – is more by way of a statement of law, based on the tribunal judge’s legal expertise.  Unfortunately the Record of Proceedings is arguably rather ambiguous.  The only relevant passage appears to read as follows, presumably being the tribunal judge’s paraphrase of his question followed by the appellant’s answer: “Was spending Daughter’s monies. – Yes, but I was holding it.”  On the face of it, that note might support either the tribunal judge’s conclusion or the appellant’s assertion.

 

19. In the circumstances I do not need to resolve this point, as I satisfied that the appeal can be allowed on other grounds.  These grounds were not identified as such by the appellant in her appeal. However, the Upper Tribunal exercises an inquisitorial jurisdiction.  This means that it can raise issues of its own accord which are relevant to the appeal before it.

The points identified by the Upper Tribunal

 

20. When giving permission to appeal, I drew attention to three possible problems with the tribunal’s decision.  First, had it made adequate findings of fact as to whether the legal and/or beneficial interest in the daughter’s funds in question had been transferred to the appellant? Second, was the tribunal right to rely on Commissioner’s decision R(IS) 1/90 in the way that it did?  Thirdly, had the tribunal made sufficient findings of fact as regards the actual amount of capital held by the appellant and in particular whether it exceeded £16,000 at all times?

 

21. The City Council’s submission to the Upper Tribunal has been provided by the (or a) Benefit Team Leader in the Benefit Services Department.  It does not appear to have been based on advice from the Legal Department.  In summary it is mostly a restatement of the City Council’s case.  Whilst clear enough, it does not really address the three issues identified by the Upper Tribunal when giving permission to appeal, either in detail or at all.

 

(1) Had the interest in the daughter’s funds been transferred to the appellant?

 

22. The appellant’s case, in the simplest of terms, was that some of what appeared to be “her” capital, in that it was sitting in a building society account in her sole name, was actually capital that belonged to, and which she was looking after for, her daughter.

 

23. In the section of the Statement of Reasons headed “Facts found”, the tribunal judge actually said relatively little about this aspect of the case.  The passage in question reads as follows (I have added Roman numerals for ease of explanation):

 

“8. ...(i) The Appellant asserts that some £9000 was deposited with her and placed into her care by [her daughter] following her divorce in 2003 from [her then husband]. (ii) [The daughter] received a settlement of £9000 and the Appellant asserts that sums totalling £10700 were held in her Nationwide accounts for her daughter. (iii) There is, however, no written evidence with the papers confirming that these monies were definitely held in trust within the Nationwide accounts for [the daughter]. (iv) Although it does seem that monies were returned to her in May 2008 and August 2008 from the Appellant’s Nationwide account on pages 105 and 107 of the evidence so that [the daughter] could go travelling.”

 

24. I make the following observations.  Paragraph 8(i) rehearses part of the appellant’s evidence rather than makes a finding of fact. Paragraph 8(ii) starts with what appears to be a finding of fact and then again reverts to a narration of the appellant’s case (and impliedly referring to the appellant’s evidence that the daughter had also been giving her £100 every 4 weeks in addition to the original £9,000 to hold onto for her).  Paragraph 8(iii) is a clear finding of fact and plainly justified on the evidence before the tribunal.  Paragraph 8(iv) is a rather tentative finding of fact that the appellant returned monies to her daughter.  Overall, what this passage lacks is a clear finding that the money in question was either (A) the mother’s money outright or (B) funds held by the mother but belonging to the daughter.  Paragraph 8(iii) might support conclusion (A), although paragraph 8(iv) might be more consistent with conclusion (B), unless of course those payments were regarded as gifts, although that was not stated to be so.

 

25. In the section of the Statement of Reasons headed “Reasons for decision”, the tribunal judge returned to the issue in the following terms (again, with sub-paragraph numbering added):

 

“2. ... (i) We have [the daughter’s] letter from page 101 of the evidence and the statement on page 107 showing that the sum of £7500 was transferred back from 30.5.08.  (ii) However, during both of the periods of overpayment in question the Appellant, as she admitted in oral evidence, had full use of all monies within her various Nationwide accounts which she could use as and when she wished without restriction. (iii) There was no written evidence indicating any trust or other form of equity.  (iv) The letter written by [the daughter] on page 101 was sent to the Tribunals Service after the date of decision on 17.3.09.”

 

26. The next paragraph of reasons started as follows:

 

“3. The monies from 2003 which the Appellant was allegedly holding for her daughter could have been paid into a separate designated account as could subsequent payments pending any world trip that [the daughter] was going to make.  No such account was ever opened.”

 

27. Paragraph 2(i) entirely reasonably refers to some of the relevant evidence.  Paragraph 2(ii) is contested and I refer back to the discussion at paragraph 18 above. Paragraph 2(iii) was a justifiable finding of fact but simply repeated the earlier finding in paragraph 8(iii). 

 

28. Paragraph 2(iv), however, is ambiguous.  It might be saying that because the letter post-dated the date of decision it could not be taken into account at all.  If so, it was an elliptical reference to the principle set out in paragraph 6(9)(b) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000, which states that the tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (i.e. in the same terms as section 12(8)(b) of the Social Security Act 1998 for most social security appeals).  If so, there are two possible problems with the statement.  First, the actual decision by the City Council under appeal was made on 23 October 2008, although that of course was even earlier.  Second, and more seriously, what mattered was not the date of the letter itself but whether it referred to circumstances before or after the date of decision (see Commissioners’ decisions R(DLA) 2/01 and R(DLA) 3/01).  If – as was actually the case – it referred to earlier events, then there was no reason it could not be taken into account.

 

29. Alternatively, the implication of paragraph 8(iv) might be that the tribunal’s view was that the letter was admissible but less weight was to be attached to it as it came after the City Council’s decision.  On that basis the daughter’s letter might be seen as (to put it bluntly) evidence concocted later to justify, after the event, a particular course of action at an earlier date which had now been brought into question.  The weight to be attached to any particular evidence is clearly a matter for the good judgment of the First-tier Tribunal.  However, if this was the line being taken, then it should have been spelt out as such rather more clearly.  Furthermore, on one level it is hardly surprising that the letter came after the decision as it was only then that the daughter was asked to provide her account of what had happened.  Before then it was presumably not an issue.

 

30. The daughter’s letter (at doc 101) therefore needs to be considered.  The daughter explained that she had received a divorce settlement of £9,000 in 2003 and “this was then put in my mother’s care along with various lump sums over the next 5 years.  This money was intended to be used by myself for an overseas trip I had been planning.  My mother was looking after the money for me as, not having been particularly good with saving, I wanted it to be in a place that I could not access easily.  This money was then returned to me in the middle of last year [2008], when I left for my travels.”

 

31. I also note that at the first and adjourned tribunal hearing the appellant gave evidence to the same effect “Daughter 2003 – gave it to me – Unable to save. £9000 & other payments totalling £17000; returned in Aug 2008 as daughter go on travels.”  (The reference to £17,000 appears to be simply a mis-transcription for £10,700.)  Certainly at the final hearing the suggestion was that the mother was looking after about £10,500 for her daughter.  At that hearing she also explained, when asked why the money had not been paid into a separate dedicated account, “savings [rate] gave me a good return + my daughter”.

 

32. The tribunal’s explanation given at the start of paragraph 3 of its reasons (see paragraph 26 above) was plainly justifiable on one level.  The funds could certainly have been placed in a dedicated account.  However, the tribunal had been given at least two explanations as to why this had not been done – first, that the daughter was a poor saver and profligate and, second, that the (combined) savings got a better rate of interest.  On the face of it either was (or both were) a plausible explanation.  Leaving to one side the fact that these arrangements, if that is what they were, were made in the context of a family relationship, the tribunal needed to do more by way of fact finding and giving of reasons to explain why the appellant’s account was not accepted.

 

33. The fundamental problem, however, was that the tribunal moved from the appellant’s assertions (put in legal terms) that the beneficial title to the money was never transferred by her daughter to her through a discussion about trusts and the lack of any supporting documentation for any trust to an implication that, even if the money had been originally the daughter’s, it had become mixed with the mother’s funds and was at her complete disposal and so had somehow become hers, but without clear findings of fact as to who owned the funds in question at any given time.

 

(2) Was the tribunal right to rely on Commissioner’s decision R(IS) 1/90?

 

34. This leads to the second point identified when permission to appeal was given.  The start of paragraph 3 of the tribunal’s reasons was cited at paragraph 26 above.  That paragraph then continued as follows:

 

“... the Appellant has seemingly done nothing to renounce ownership and control of any monies subsequently paid to her daughter.  In this respect it has been held that a person should not be treated as voluntarily giving up an interest in properties or monies unless there is a very clear indication that this was his/her intention: R(IS) 1/90.  Accordingly it was held that there was no express or implied declaration of trust in that case.  Nor is there such an implied trust or form of equity in this case and I must hold that all the monies in the Appellant’s Nationwide accounts must be deemed to be within her exclusive ownership for Council Tax Benefit purposes”.

 

35. The tribunal therefore relied on Commissioner’s decision R(IS) 1/90 to conclude that there was no trust of the money in the present case.  The statement of law which the tribunal derived from the case of R(IS) 1/90 is accurate.  However, the facts of that case were materially different.  In R(IS) 1/90 the claimant had put funds into a separate account, purportedly for the sole purpose of financing his son’s education, but had executed no documents to that effect.  The question there was whether or not the claimant had renounced ownership of those monies (which, of course, were originally his and still held in his name, albeit in a different account).  It was held that there was insufficient evidence of any declaration of trust. 

 

36. In the present case the circumstances were fundamentally different.  The appellant’s case was, in effect, that she had never acquired beneficial ownership of the monies deposited with her by her daughter.  In plain English, she was looking after that money for her daughter but it remained her daughter’s money.  If she had indeed never acquired a beneficial interest in the funds, then how could she renounce such ownership?  The tribunal therefore erred in law: the principle in R(IS) 1/90 was correctly stated by the tribunal but incorrectly applied in the circumstances of this case.

 

37. At root the tribunal never really got to grips with the evidence so as to make clear findings of fact about the transfers of funds from the daughter to the mother, and then did not consider and apply the relevant principles of trusts law.  (It is fair to say, of course, that the City Council’s submission gave absolutely no assistance in this regard and the appellant herself understandably did not refer to the finer points of the law of equity).  As discussed above, paragraphs 8(i) and (ii) narrated the appellant’s arguments rather more than they made findings of fact, but the inference is that the tribunal accepted the account of how the daughter transferred the monies to her mother for safekeeping (see also paragraph 8(iv)).

 

38. At that point the First-tier Tribunal then only appears to have asked itself two questions.  First, did the mother have full access to the use of those funds?  Second, was there any documentary evidence to justify a finding of a trust?  As to the first, the evidence relied on for the crucial finding of fact is perhaps ambiguous, as has already been mentioned.  As to the second, clearly the absence of any written declaration of trust is one consideration. However, although it may be evidentially very helpful, there is no legal requirement for a declaration of a trust over monies to be committed to writing.  Indeed, there are no technical formalities at all and it may be doubtful how realistic it is to expect a written declaration of trust in the context of a family relationship such as this.

 

39. From a legal (or rather equitable) point of view, the tribunal omitted to go on and ask itself the next crucial question, namely how might the law of trusts apply in this context.  One clear possibility where a daughter transfers funds to her mother is that the mother then holds the funds in question on resulting trust for her daughter (there might be some issue about the doctrine of advancement – a common law presumption due to be abolished under section 199 of the Equality Act 2010 – if the transfer was the other way round, but that was not the case here).  The presumption of such a trust would be rebutted if there was evidence that e.g. the daughter had made the transfer to her mother as a gift, but there was simply no evidence to support such a conclusion in the present case.  The tribunal’s narrow focus on the absence of written evidence of a trust distracted it from answering that key question – was the mother holding the funds on resulting trust for her daughter?  Its failure to address that question was an error of law.

 

(3) Did the tribunal make enough findings of fact about the amount of capital?

 

40. The First-tier Tribunal accepted the City Council’s argument that even if the £10,500 (or £10,700) actually belonged to the daughter, then the mother’s capital assets were still above £16,000 at all material times.  The tribunal judge stated as follows:

 

“Indeed, I rather agree with [the Benefit Team Leader and representative] for the Local Authority who asserted that even if some of the monies within the Nationwide accounts were held for the Appellant’s daughter she would still have been over the £16,000 limit for much of the periods in question, there having in any event been clear misrepresentations to the Local Authority.”

 

41. I have to say this reasoning is less than compelling.  The tribunal did not explain by reference to any figures by how much the appellant’s capital exceeded the £16,000 limit.  It did not explain how long “much of the periods in question” was and how much (if at all) she had capital below the £16,000 limit.  There may well have been misrepresentations by the appellant on her claim forms as to the amount of her capital but it is not immediately obvious how those misrepresentations in themselves show that she had capital above the £16,000 limit at all (or even most) times. This lack of clear fact-finding was also an error of law.  In this regard I refer to my observation at paragraph 10 above. The tribunal’s task was made immeasurably more difficult by the City Council’s failure to provide a clear schedule demonstrating the individual and aggregate capital holdings at specific dates by reference to the evidence on file.

 

A further complication

 

42. I referred above to the City Council’s rather cavalier use of language (see paragraph 6 above).  The same point has been made on many other occasions in other cases by Social Security Commissioners and now Judges of the Upper Tribunal.  The point is not a pedantic one to do with the proper use of language.  It concerns the proper operation of a statutory scheme for decision making.

 

43. In the present case the decision-making trail, as so often, is not always readily reconcilable with the statutory scheme.  The original decision letter referred to the appellant’s claim (actually claims) being “reviewed” and that she no longer qualified for CTB for certain dates, and had been overpaid CTB “because you have had Capital exceeding £16000 since 24.01.05”.  I accept that the City Council seeks to phrase such letters in language that is readily understandable, rather than using technical legal concepts.

 

44. The City Council’s submission to the tribunal sought to deal with the evidence about the appellant’s capital holdings but did not deal with the decision-making implications.  They were also not really addressed by the First-tier Tribunal, which understandably enough tried to focus on the merits of the dispute.  The tribunal referred in passing at paragraph 6 of its Facts section to the City Council having “superseded” its earlier awards of CTB on the basis that the appellant had more than £16,000 in capital.  However, strictly speaking the tribunal should have considered more fully the basis upon which the City Council was purporting to “cancel” or “terminate” the appellant’s CTB for the past periods in question.  The most likely answer is that the City Council was effecting a revision on the basis of ignorance or mistake as to a material fact, rather than superseding as such.  In an ideal world the tribunal might have perfected the City Council’s decision in this way, but its failure to do so is not an error of law (see R(IB) 2/04 at paragraph 82).

 

 

 

Another development

 

45. In its submission to the Upper Tribunal, the City Council makes a new point.  It states that the appellant was interviewed under caution in relation to a different property which she owned but had not referred to on either of her claim forms.  It seems that she had owned and rented out this other property since 2001.  At interview she said that she had never made any money out of the letting and had assumed that she only had to declare it if the equity in the property was tangible.

 

46. It appears that the City Council investigator also accepted that the appellant suffered from serious mental health problems.  As a result, the City Council’s original decision to offer an administrative penalty as an alternative to prosecution in relation to the CTB excess payment of £1,203.28 was rescinded.  Instead, the City Council closed the case as one of “claimant error”, taking the view that it was not in the public interest to take the matter forward. The City Council is to be commended for its sensible and sensitive handling of that aspect of the case.

 

47. However, there is one troubling aspect of the case.  The investigating officer’s report is dated 22 June 2009.  That date was between the adjourned hearing and the final hearing before the First-tier Tribunal.  The report was not produced at the final hearing and it seems no mention was made of it.  It may well be that the City Council took the view that it might be prejudicial and unfair to the appellant if the tribunal were alerted to the details of a potential fraud inquiry.

 

48. Whatever the City Council’s motives, this approach was less than satisfactory.  As part of its inquisitorial function it is the tribunal’s task to ensure that, so far as possible, appellants who are entitled to benefit receive it and those who are not do not (see e.g. Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 at paragraph 41).  The tribunal is disabled from doing so if potentially relevant evidence is withheld by either party.  It is also, of course, the responsibility of both parties to help the tribunal further the overriding objective in dealing with cases fairly and justly (Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules (SI 2008/2685), rule 2(4)).

 

49. In addition, it is not for the City Council to decide what is or is not relevant evidence.  Leaving aside the issue of the other property, the City Council clearly had information available to it about the appellant’s mental health which it did not share with the tribunal.  That information might well have been relevant to the tribunal in terms of how it decided to evaluate the evidence in the case.

 

50. Before the re-hearing the City Council should consider whether or not it intends to make any further decisions in relation to the appellant’s entitlement to CTB for the periods in question. It is quite possible, depending on the valuation of the appellant’s interest in the other property, that the combined value of her bank account holdings and the interest in that property would comfortably exceed £16,000, irrespective of whether the £10,500 (or £10,700) was held on trust for the daughter or not.  If there is no entitlement to CTB, presumably this will have no effect on the size of the original overpayment.

 

Conclusion

 

51. For the reasons explained above, the decision of the Southampton First-tier Tribunal involves an error of law.  I therefore allow the appellant’s appeal and set aside the tribunal’s decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.  The appeal needs to be reheard before a new tribunal (section 12(2)(b)(i)), subject to the Directions listed above.

 

52. I repeat the suggestion that the appellant might be well advised to seek expert assistance from an organisation such as a Citizens’ Advice Bureau or other advice centre specialising in welfare benefit issues.

 

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 16 December 2010 Judge of the Upper Tribunal