[2007] UKSSCSC CH_3631_2006 (10 August 2007)

CH 3631 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

1. This appeal by the local authority, brought with the leave of the District Chairman of the tribunal given on 14th September 2006 against the decision of the Colchester tribunal given on 4th April 2006 under reference U/42/132/2006/00147, is abated. I make no further order. 

Background and Procedure

2. I set out the facts insofar as I can work them out from the documents in the file. The late claimant was born on 27th May 1928. He and his wife rented local authority accommodation at No 11, the freehold of which they purchased on 13th January 1997 under a right to buy scheme. On 17th February 2003 they moved into No 3, which they rented from a housing association. In March 2004 the claimant’s wife went onto a nursing home. On or about 25th June 2004 the late claimant moved into No 15, which was also rented from a housing association. On 28th September 2004 he claimed housing and council tax benefit in respect of No 15 and asked for it to be backdated to the date that he had moved in. He signed a form, completed for him by an official of the local authority, to the effect that he did not own any (real) property other than the home he lived in. Benefit was awarded.

3. In fact, at least until 6th September 2005 (the date of the relevant Land Registry Certificate) the late claimant and his wife still owned the freehold of No 11. However, Land Registry documentation also showed that there was a charge over No 11 in favour of Mr and Mrs W, dated 13th January 1997 (to which I refer as “the first charge”) and that “The amount secured by this charge shall be equivalent to the net market value of the property as between a willing buyer and a willing seller…”. It seems that Mrs W is the daughter of the late claimant and that Mr W is her husband. The local authority is of the opinion that the amount secured is to be calculated by reference to the value of the property as at the date of the charge and does not include any subsequent increase in the value of the property.

4. On 13th October 2005 the local authority decided that No 11 was at that stage valued at £119,000. There was a further bank mortgage of £17,000 and, after the deduction of the mortgage, the first charge and deemed sale costs, the net value was £85,100, half of which represented the capital of the claimant. Although I do not have to decide this, on the face of it there seem to me to be two errors in this calculation quite apart from any question as to the basis on which the tribunal subsequently allowed the appeal (on which I express no view). The first is that the relevant date for the valuation should have been the date of the award of benefit, not the date that the authority happened to make the decision. The second is that the authority regarded the market value as the discounted price under the right to buy scheme – but that it not how it was defined in the wording of the charge. 

5. On the basis that the late claimant’s capital exceeded the statutory limit of £16,000, the authority decided that there was no entitlement to housing or council tax benefit from 21st June 2004 to 13th October 2005 and that there had been recoverable overpayments of £11,230.39 housing benefit and £681.61 council tax benefit.

6. On 9th November 2005 the late claimant appealed to the tribunal against the decision of the local authority. The basis of the appeal was that the market value for the purposes of the first charge referred to the value at the date of sale of the property, not the date of purchase, and that it was wrong to take account of the discounted price. 

7. On a date that I have been unable to ascertain, but before the tribunal hearing, No 11 was sold for £117.050. The first charge had been redeemed for £96,964.04 and the mortgage for £17,363.58.

8. The tribunal considered the matter on 4th April 2006 and allowed the appeal on the basis that Mr and Mrs W were in fact the beneficial owners of No 11 and entitled to the net proceeds of sale whenever it was sold. Therefore the claimant did not have capital in excess of the statutory limit.  The local authority applied for leave to appeal to the Commissioner against the decision of the tribunal on the basis that the tribunal had misconstrued the nature of the charge. On 14th September 2006 the District Chairman of the tribunal granted leave to appeal.

9. Sadly, the claimant died on 8th August 2006 at the age of 78. On 17th November 2006 the local authority informed the Commissioners’ office that it had appointed Mrs W “to proceed with the appeal … under regulation 21(1) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001”, enclosing a copy of the latter of appointment dated 13th November 2006. In fact, Mrs W has played no part in the proceedings before the Commissioner, not replying to or commenting on any documents.

10. On 20th February 2007 the Secretary of State indicated a wish to be joined as a party to the appeal and made submissions on regulation 21.

The Regulation

11. In so far as is relevant, regulation 21 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 provides as follows: 

21(1) In any proceedings, on the death of a party to those proceedings, the relevant authority may appoint such person as it thinks fit to proceed with the appeal in the place of the deceased.

(2) A grant of probate, confirmation or letters of administration in respect of the deceased, whenever taken out, shall have no effect on an appointment made under paragraph (1).

By virtue of other provisions (see paragraph 5 of the submission of 20th February 2007 from the Secretary of State) the local authority in the present case is the relevant authority for the purposes of regulation 21(1). 

12. However, regulation 1(2) of the 2001 regulations states that “In these Regulations … “appeal” means an appeal to an appeal tribunal”. The Commissioner is not an appeal tribunal, which is a body set up under section 5 of and schedule 1 to the Social Security Act 1998 as applied to housing and council tax benefit appeals by section 22 of and schedule 7 to the 2001 regulations. The procedure before the Commissioner is governed by the Social Security Commissioners (Procedure) Regulations 1999, which contain no equivalent to regulation 21(1) of the 2001 regulations.

13. Questions as to whether regulation 21(1) allow the appointment of a person who has not consented to the appointment (which Mrs W has not), or whether the phrase “proceed with the appeal” includes being a respondent to the appeal, might have to be dealt with in an appropriate case but I do not have to decide them in the present case. However, by the time of Mrs W’s appointment by the local authority, the appeal before the tribunal had been completed and the local authority had no power to appoint anybody to act on behalf of the deceased claimant for the purposes of the appeal to the Commissioner.  

Death of A Party to Proceedings Before the Commissioner 

14. It has long been the rule that (except where there is an undertaking not to pursue the recovery on overpayment, or an appeal is withdrawn on the death of the claimant respondent) an appeal to the Commissioner is abated on the death of a claimant unless some person is duly empowered to proceed with it (R(S) 7/56; R(I) 2/83; R(I)2/83; R(SB)25/84).

15. R(SB) 8/88 and R(IS) 6/01 endorsed this approach although the former case was concerned with the validity of an appeal to the tribunal rather than to the Commissioner. In effect a person would be “duly empowered” if he or she were an executor where there had been a grant of probate, an administrator where letters of administration had been granted, or where there had been an appointment by the Secretary of State. 

16. The current provision in relation to appointment by the Secretary of State (or, where appropriate, HMRC) in the case of the death of a person who has made a claim for benefit, is to be found in regulation 30 of the Social Security (Claims and Payments) Regulations 1987. That extends to “any related issue of … appeal”, but “appeal” does not have the same restrictive definition as it does in the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001. However, assuming that this provision applies for the purposes of housing and council tax benefit, the Secretary of State has not appointed a person to represent the late claimant or his estate.

17. In the context of a decision on recoverability of an overpayment from the claimant’s estate, R(IS) 6/01 (referred to in some sources as CIS/1423/1997) decided that the estate is not itself a legal person or a party. In the present case there is no evidence of a grant of probate or letters of administration and thus there is no duly empowered person to represent the estate in these proceedings before the Commissioner.

18. The local authority might have other remedies, but that is not for me to decide, except to point out that as things stand it is bound by the decision of the tribunal that there was no recoverable overpayment.

Conclusion

19. For the above reasons this appeal by the local authority is abated. 

H. Levenson
Commissioner

10th August 2007