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Neutral Citation Number:
Reported Number:	R(H)3/05
File Number:	CH 2155 2003
Appellant:
Respondent:
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	09/09/2004
Date Added:	17/09/2004
Main Category:	Claims and payments
Main Subcategory:	required information
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	tribunal jurisdiction
Notes:	Claims for housing benefit and council tax benefit - failure to give required evidence or information - whether power to refuse to give decision on a claim Tribunal practice - jurisdiction - whether right of appeal against refusal to give decision on a claim In each case the claimant's local authority had purported to refuse to give a decision on a claim for housing benefit (and in three cases also council tax benefit) because the claimant had failed to supply the evidence requested, invoking regulation 76(2)(b) of the Housing Benefit (General) Regulations 1987 (the HB Regulations) and identical council tax benefit provisions. All four claimants appealed. In CH/2155/2003, CH/3423/2003 and CH/3511/2003 the tribunal held that it had no jurisdiction to hear an appeal. In CH/3600/2003 the tribunal held that it did have jurisdiction and that the claimant was entitled to benefit. The claimants appealed in CH//2155/2003, CH/3423/2003 and CH/3511/2003, and the local authority appealed in CH/3600/2003. The issues for the Tribunal of Commissioners were (1) whether a failure to provide evidence or information under regulation 73 of the HB Regulations rendered a claim defective and, if so, whether there was (a) a duty or (b) a power to determine such a claim; (2) whether a decision to refuse to decide a claim was appealable. Held, allowing the claimants' appeals and dismissing the local authority's appeal, that: 1. a failure to provide evidence or information requested after the receipt of a claim does not render the claim defective (paragraphs 69 to 71); 2. although not expressly created within the statutory scheme, a duty to determine claims for benefit must generally be implied into it, since to construe the provisions otherwise would, in the absence of clear statutory language, undermine the entire scheme (paragraphs 72 to 74); 3. the power to make regulation 76 could not be implied into section 5 of the Social Security Administration Act 1992, on the ground that it was necessary in order to provide for cases where a decision was impossible because evidence or information had not been provided, since it was always possible for the authority to make a decision, drawing an adverse inference if necessary (paragraphs 76 to 85); (Kerr v Department for Social Development [2004] UKHL 23, [2003] 1 WLR 1372, R1(04) (SF) applied. 4. the proper construction of regulation 76(2) had the effect that the regulations allowed what was in substance a decision on a claim to be treated as not being such a decision, but the broad power under section 123(1)(d) of the Social Security Contributions and Benefits Act 1992 to make a housing benefit scheme did not authorise the Secretary of State to make a regulation having such an effect, and regulation 76(2) was therefore ultra vires (paragraphs 86 to 96); 5. it followed that the decisions of the local authorities were to be treated as decisions that the claimants were not entitled to benefit and, as such, the decisions were appealable (paragraphs 100 to 103). The Tribunal, having allowed the claimants' appeals against the decisions of the appeal tribunals, went on to consider the claimants' entitlement to benefit in CH/2155/2003 and CH/3423/2003 (deciding the former case against the claimant and the latter case in the claimant's favour) and referred the case in CH/3511/2003 to a differently constituted appeal tribunal. Note: regulation 76(2) of the Housing Benefit Regulations was revoked by SI 2004/3368 with effect from 21 December 2004.
Decision(s) to Download:	R(H) 03_05 bv.doc