IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER	Case Nos. CH/3472/2005
CH/3479/2005	

Before Upper Tribunal Judge Rowland

Attendances:

For the Appellant:	Mr Simon Cox of counsel, instructed by Mr Mark Maries of Torbay Borough Council.

DECISIONS

1.	I allow the local authority’s appeals in part.  I set aside the decisions of the Exeter appeal tribunal dated 14 March 2005 and substitute –

in the case on file CH/3472/2005, a decision that the claimant is entitled to housing benefit on the basis that her eligible rent was £312.57 per week (£57.50 “core rent”, £2.95 in respect of the provision of an emergency alarm system and £252.12 in respect of general counselling and support); and

in the case on file CH/3479/2005, subject to further representations being made in accordance with paragraph 15 below, a decision that the claimant is entitled to housing benefit on the basis that his eligible rent was £442.45 per week (£57.50 “core rent”, £2.95 in respect of the provision of an emergency alarm system and £382.00 in respect of general counselling and support).

REASONS FOR DECISIONS

2.	These cases raise a preliminary procedural issue.  The claimants died after lodging their appeals against the local authority’s decisions awarding housing benefit but before they were heard by the appeal tribunal.  In those circumstances, a local authority would generally appoint someone to “proceed with the appeal in the place of the deceased” under regulation 21 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (S.I. 2001/1002).  However, in this case, that was not done.  

3.	The claimants had been living in the South Devon Hotel in Torquay and the appeals arose out of a dispute as to the amount of housing benefit to which they were entitled because the local authority took the view that the charges for the accommodation and services are excessive.  These cases were two out of eighteen appeals considered by the appeal tribunal and now by me, the lead case before me being Torbay Borough Council v RA (HB) [2011] UKUT 304 (AAC).  It appears that the owner of the hotel knew of no relatives of the claimants who could be appointed to act on their behalf after they died.  The local authority took the view that, as the owner of the hotel had a “vested interest as landlord, it might not be appropriate for us to appoint [a relative of the manager of the hotel], but as South Devon Hotels will be dealt with via ‘test cases’, this is probably not too much of a problem”.  A tribunal chairman directed the local authority to make appointments but that had no effect.

4.	The appeal tribunal carefully considered whether the appeals should be treated as abated, despite both the local authority and the landlord declining to make any submissions on the point.  It took the view that abatement was not automatic and decided that the appeals should be considered in the light of the lead case.  They were allowed to a substantial extent and the local authority now appeals against the appeal tribunal’s decisions with its leave.

5.	When I first considered these appeals, I suggested that, if no-one were appointed to act on the claimant’s behalf, the appeal tribunal’s decision would have to be set aside, but I suggested that the local authority should appoint the claimant’s landlord to act if no-one else was available.  I had in mind the point that, if an appointment is made, it is capable of operating retrospectively so as to validate earlier actions of the appointee (R(SB) 5/90).  The local authority has continued to decline to appoint anybody to act and I directed that this case be listed for mention when the lead case was considered at an oral hearing.  The Secretary of State declined an invitation to be joined as a party.  At the hearing, the local authority was represented by Mr Simon Cox of counsel, instructed by Mr Mark Maries of Torbay Borough Council.

6.	Where a claimant has appealed in a case concerning what might be termed an ordinary social security benefit and then dies and no-one is appointed to act in his or her place, the case is usually abated, which means that no further action is taken on it although it can be reinstated if anyone is subsequently appointed (R(I) 2/83).  No-one suffers any disadvantage in those circumstances.  If no-one is available to be appointed to continue the appeal, it is usually because there is no-one to whom the benefit can be paid on behalf of the estate or because the estate is not interested in pursuing the appeal.  The position in a housing benefit case is slightly different because, if a claimant leaves no estate, the landlord may receive rent to which he is entitled only if housing benefit is awarded and a claimant’s next-of-kin may have a corresponding lack of interest in the case if all the fruits of any victory have to be passed to the landlord.  In the present case, I suggested that it was difficult to see any possible conflict of interest between the claimant’s estate and the landlord and that it seemed inappropriate for a local authority, who was the respondent to an appeal before a tribunal to prevent the landlord obtaining rent due to him, when it would be paid only if housing benefit were awarded by the tribunal. 

7.	Mr Cox, however, referred me to regulation 96 of the Housing Benefit (General) Regulations 1987 (S.I. 1987/1971) (now regulation 97 of the Housing Benefit (General) Regulations 2006 (S.I. 2006/213)), which, under the heading “Payment on death of the person entitled”, provides –

“96.—(1) Subject to paragraphs (3) and (5) where the person entitled to an allowance has died the relevant authority shall make payment either to his personal representative or, where there is none, his next of kin if aged 16 or over.
(2) For the purposes of paragraph (1) “next of kin” means in England and Wales the persons who would take beneficially on an intestacy and in Scotland the persons entitled to the moveable estate on intestacy.
(3) A payment under paragraph (1) or (5) shall not be made unless the landlord, the personal representative or the next of kin, as the case may be, makes written application for the payment of any sum of benefit to which the deceased was entitled, and such written application is sent to or delivered to the relevant authority at its designated office within 12 months of the deceased’s death or such longer period as the authority may allow in any particular case.
(4) The authority may dispense with strict proof of title of any person claiming under paragraph (3) and the receipt of such a person shall be a good discharge to the authority for any sum so paid.
(5) Subject to paragraph (3), where the relevant authority determines, before the death of the person first mentioned in paragraph (1), that a rent allowance was payable to his landlord in accordance with regulation 93 or 94, that authority shall pay to that landlord so much of that allowance as does not exceed the amount of rent outstanding at the date of the person’s death.”

He pointed particularly to paragraph (5) and submitted that, unless it had been determined before the claimant’s death that the housing benefit should be paid to the landlord, the local authority had no power to make the payment to the landlord.  In the absence of any personal representative or next-of-kin, there arises the question whether the landlord has any practical interest in an appeal.

8.	It is not, in fact, clear to me that the landlord in this case would not have been entitled to payment under regulation 96(5) of the 1987 Regulations because I do not know whether the original payments of housing benefit from the date of the award in July 2002 until the claimant’s death were made to the landlord.  If they were, then it seems to me that the condition imposed by regulation 96(5) is met in respect of any additional amounts due in consequence of an appeal.

9.	Even if that condition was not met, it seems to me that the landlord had an interest in the appeal because he could apply for probate as a creditor (see rule 22(3) of the Non-Contentious Probate Rules 1987 (S.I. 1987/2024)).  He would incur costs in doing that.  However, it is noteworthy that regulation 96 was concerned only with payments.  It is not essential that a person be a personal representative of an estate before being appointed to act in place of a person on an appeal.  Indeed, if there is a personal representative, such an appointment is unnecessary because the personal representative stands in the claimant’s shoes under the general law – hence the need for regulation 21(2).  I accept that a person appointed under regulation 21 is not necessarily entitled to payment under regulation 96 but it seems to me to be perfectly sensible for a person who could obtain probate to be appointed under regulation 21 to act in an appeal so that he or she can then decide, in the light of the outcome of the appeal, whether any payment due is worth the cost of obtaining probate.  In these cases, substantial sums were in issue and the appeal tribunal awarded an additional £82.14 per week in one case and £245.08 per week in the other.  I am not sure exactly when the claimants died, but there could have been over a year’s worth of benefit involved in each of the cases, with several thousand pounds at stake altogether.

10.	I do not doubt that it is desirable for a local authority to check either that next of kin are content for a landlord to be appointed under regulation 21 or that there probably are no traceable next of kin before appointing a landlord under regulation 21.  The local authority will also no doubt wish to be assured by a landlord that “rent” is outstanding.  However, if so satisfied, I see no reason why a landlord should not be appointed under regulation 21.  An appeal tribunal had no express power to compel a local authority to make an appointment.  I prefer not to express a view as to whether an appeal tribunal that was satisfied that a particular appointment should have been made was entitled to direct a local authority to make the appointment and whether a local authority was liable to be punished for contempt of court if it failed to comply with the direction.  I will assume for the purposes of this appeal that an appeal tribunal had no such power.

11.	On that assumption, the question arises whether an appeal tribunal was entitled to hear an appeal in the absence of an appointment.  In my view it was, provided that it was satisfied that justice would be better served by hearing the appeal rather than declaring it to be abated.  As the appeal tribunal in these cases reasoned, the authorities show that abatement is not the only course of action that may be taken and, if dismissal may sometimes be appropriate (as accepted in R(I) 2/83), there is no reason in principle why allowing an appeal may not also be appropriate in some cases.  Before considering the merits of an appeal where no-one had been appointed to act on behalf of the appellant, an appeal tribunal would have had to be satisfied that there was some practical purpose in hearing the appeal and that it was unlikely that the interests of any person would be overlooked.  It would have been entitled to bear in mind that no payment could be made in the light of the appeal unless the local authority was satisfied that there was someone to whom it could properly make the payment.  

12.	In the present cases, the appeal tribunal was, in my judgment, perfectly entitled to conclude that there was a practical purpose in hearing the appeals.  The claimants having been living as residents in a residential care home run by the landlord, this landlord was likely to have a better idea than most as to whether the claimants had next of kin.  It was also not a case where the interests of next of kin who might appear in the future would be likely to be prejudiced because, as far as the right to housing benefit was concerned, the landlord always had as much of an interest as the claimants – in practice, probably a greater interest – and so the cases were likely to be fully argued.  Moreover, the landlord had the relevant financial information and the claimants could not have argued the cases without the landlord’s assistance.  Furthermore, these were but two out of eighteen cases that all turned on exactly the same point and, indeed, it appears that the local authority had persuaded other claimants not to appeal on the basis that their cases would be looked at again in the light of the decisions of the appeal tribunal in those cases where appeals had been brought.  I am therefore satisfied that the appeal tribunal was entitled to determine the appeals before it in these cases and that I am now equally entitled to determine these appeals on their merits.

13.	Quite apart from those considerations, I have recently decided in Salisbury Independent Living v Wirral Borough Council (HB) [2011] UKUT 44 (AAC) that a landlord has a right of appeal in his own right in a case like the present.  An appeal has been brought against that decision with my permission, but, if I was correct in that decision, the appeal tribunal in the present cases could probably have allowed the appeals to proceed as the landlord’s appeals.

14.	As to the substantive issues in the appeals, these cases are indistinguishable from Torbay Borough Council v RA (HB), the lead case, save as to the number of hours of general counselling and support used to calculate the eligible service charge.  Accordingly, for the reasons given in the lead case, I allow the local authority’s appeals and substitute the decisions set out above.

15.	In the case on file CH/3479/2005, it appears that the claim for a service charge was erroneously based on the claimant having an assessed requirement for 32 hours per week general counselling and support and, although the appeal tribunal did correct similar errors in other cases, it did not do so here, where the assessment at pages 71 to 73 appears clearly to show a requirement for only 25 hours per week general counselling and support.  I have based my decision on that figure.   If the landlord’s manager, who represented the other claimants and to whom a copy of this decision will be sent, considers that I have overlooked something in this regard, he may make further written representations, on this point only, within one month of being sent this decision.

16.	It remains for the local authority to decide whether any payment required to be made as a result of my decision in these cases should be made to the landlord.  That, as I have said, is a different issue from the one I have determined in deciding whether the appeals before the appeal tribunal should have been heard.

Mark Rowland
27 July 2011