Case No: A3/2007/1663

Neutral Citation Number: [2009] EWCA Civ 743
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WEST LONDON COUNTY COURT
(HIS HONOUR JUDGE BEHAR)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 8th June 2009

Before:

LADY JUSTICE ARDEN
LORD JUSTICE MOSES
and
LORD JUSTICE SULLIVAN
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Between:

	GHASSEMIAN	
Appellant	
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BOROUGH OF KENSINGTON & CHELSEA	
Respondent	

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Mr D Rutledge (instructed by Osbornes Solicitors, 9 Pratt St, London, NW1 0AE) appeared on behalf of the Appellant.
Mr C Jones (instructed by Royal Borough of Kensington & Chelsea) appeared on behalf of the Respondent.
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Judgment
Lady Justice Arden:

1.	This is an application for permission to appeal on the grounds in the reamended grounds of appeal from the decision of HHJ Behar dated 27 June 2008 dismissing an application to set aside an order dated 9 May 2007 made pursuant to Section 75(7) paragraph (a) of the Social Security Administration Act 1992 and CPR 70.5.

2.	In the amended skeleton argument in support of this application Mr Desmond Rutledge who appears for the appellant Mr Ghassemian helpfully summarises the material background.  It is as follows: 1) the appellant received housing benefit (“HB”) from 5 June 2000 to 24 November 2003 in respect of an address at 56 Chatsworth Court, London W8 6DH where the weekly rent was £272. On 24 November 2003 HB was suspended:

“(2) On 14/10/04 the Respondent issued a decision that the Appellant was no longer entitled to HB from 24/11/03 onwards.  Further, that he had not been entitled from 05/06/00 to 23/11/03.  As a result of the new decision on entitlement an alleged overpayment of £46,209.78 of HB had occurred, and a decision had been made that this was recoverable from the Appellant.

“(3) On 12/11/04, the Appellant’s previous solicitors (Duncan Lewis) wrote to the Respondent appealing all aspects of the decision, including both the issue of whether the Appellant was entitled to HB during the material period and, if he was not entitled, the issue of whether the resulting overpayment was recoverable from him.

“(4) On 17/05/05 the matter was heard by a Tribunal consisting of a Mr G Singh (deceased) who was the Regional Chair for the South East Region.  The matter was only part-heard …
“(6) On the recoverability issue, the Appellant submitted that the alleged overpayment was not recoverable as the Respondent was aware of the material fact that his mother was the landlord and so any overpayment would have been due to an official error and he could not be expected to realise he was being overpaid during the material period …

“(9) On 06/02/06, Chairman Singh issued a decision notice.  The Tribunal decided the entitlement issue against the Appellant but did not contain any reference to the overpayment being recoverable from him (emphasis added): ‘On balance, my decision is that he is not entitled to Housing Benefit from 05/06/2000 because by virtue of regulation 6(1)(a) of the Housing Benefit (General) Regulations 1987 he did not have a legally enforceable liability to pay rent.’

“(10) On 17/02/06, the Respondent invoiced the Appellant for an overpayment of HB in the sum of £46,174.78 for the period from 05/06/00 to 23/11/03.

“(11) In 2007, the Respondent issued enforcement proceedings in West London County Court under CRR 70.5.  On 09/05/06 the Court approved the order that the Respondent was entitled to enforce recovery of the overpaid HB.

“(12) The Appellant applied to set the order aside on the basis that the Tribunal had not made a determination that the paid HB was recoverable from him.

“(13) The Respondent opposed the application, submitting that the court below was entitled to infer from the terms of the decision notice that the Tribunal had made a determination that the overpayment was recoverable from the Appellant.

“(14) HHJ Behar sitting on 27/06/08 accepted the Respondent’s submission and refused to set the enforcement order aside.”

3.	The decision of Mr Singh appears in the bundle at page 50.  It is dated 6 February 2006:

“1. In addition to the bundle of documentary evidence, I had the advantage of written submissions from the representatives for which I am grateful.

2. In arriving at my decision I gave full consideration to several points made by the Local Authority.  I do not accept that the Appellant “is a man who cannot be trusted” or that there was an elaborate sham by him or that he is dishonest.  The opinions expressed by the Local Authority on these matters are in my judgement unfounded and I reject them.  I found naivety and disorganisation arising from an innocent omission to make relevant enquiries.

3. On balance, my decision is that he is not entitled to Housing benefit from 05/06/2000 because by virtue of Regulation 6(1)(a) of the Housing Benefit (General) Regulations 1987 he did not have a legally enforceable liability to pay rent.”

4.	It is apparent from the decision of Mr Singh, the Chair of the Tribunal to which he has appealed, that the issue which Mr Singh decided was the question of eligibility for housing benefit and he determined that issue against Mr Ghassemian.  Mr Ghassemian then, within the time limited for an appeal, sent an email to the tribunal’s service asking whether what the respondent had said was right when he telephoned, and he was told by the tribunal’s office that he had succeeded in his appeal and as a result his council tax appeal had been listed for the hearing.  And then he added:

“Can the council do away with Mr Singh’s decision and hold me liable for payment nonetheless?  Has Mr Singh found me liable to them?”

5.	In reply to that part of the email the tribunal service by an administrative assistant replied as follows:

“I had to refer your file to the Chairman who heard your appeal and who stated the tribunal has not held you liable for making housing benefit overpayment repayments.”

The housing authority was not itself a party to that email exchange.

6.	Later, on 10 October 2007, the tribunal’s authority wrote to Mr Ghassemian informing him of the death of Mr Singh and that the file for the appeal had been destroyed and then the letter continued:

“I understand your letter to say that the Chairman decided you were not liable to repay an overpayment.  My interpretation of the first paragraph of the email to you from Richard Dearnley [that is the administrative assistant] is that the Chairman is confirming the Tribunal has made no decision about the repayment of an overpayment. 

“In effect the Tribunal decided you were not entitled to Housing Benefit from 5 June 2000 but has not gone on to decide whether any resulting overpayment is recoverable from you.”

That letter is at page 74 of the bundle.

7.	When the matter came before the judge and it was on appeal from the District Judge who had already rejected the application, the judge rejected the application to set aside the enforcement of the decision of the housing authority and the judge gave four reasons which are set out in paragraphs 17 and 18 of his judgment which appear at pages 33 D and 33 E:

“17. I am unable to accept Mr Stagg’s submissions for the following reasons: 

(i)	The Tribunal ruled on the issue before it which was whether there was a legal liability to pay rent.  It followed inexorably from the finding that Mr Ghassemian was not entitled to housing benefit, that the overpayment was recoverable from him.  It was unnecessary for the Tribunal at the stage, when brief reasons were given, to state expressly that the overpayment was recoverable.

(ii)	The appeal has been determined.  The Tribunal has treated it as closed and has destroyed the file.  No issues were reserved or adjourned.  There is no suggestion that Mr Ghassemian has done anything to pursue an extant appeal since the decision of 6th February 2006 which was given more than two years ago.

(iii)	There is no evidence that the Regulation 99 (2) point was taken before the Tribunal.  Counsel for the respondent recalled that it had not been.  He must be right about that.  If the point had been taken it would surely have been addressed in the written closing submissions.  It is common ground that it is not there addressed.  Mr Stagg suggested that the point was raised in the letter of 12th November 2004, although he accepted that there was no express reference to Regulation 99(2).  I am satisfied that the point is not raised in that letter.

18. As I have earlier recorded, Mr Ghassemian failed to ask the Tribunal for detailed reasons.  He failed to exercise his right of appeal to a Social Security Commissioner.  He was content to wait until the Council sent him an invoice for the overpayment.  He then took what, in my judgment, was a thoroughly bad point.  Unfortunately, a letter dated 25th May 2006 from an administrative assistant employed by the Appeals Service, Nottingham appears to give some fortification to Mr Ghassemian’s point and may have misled him.  I suspect that the letter was written in haste.  It betrays signs of careless drafting.  In any case, it cannot affect the validity of the earlier decisions, nor was it argued on Mr Ghassemian’s behalf that it could do so.” 

8.	In effect the judge decided that the tribunal had only dealt with eligibility, that that had concluded the appeal, that there was no evidence that any issue on recoverability was taken before the tribunal and that Mr Ghassemian had failed to exercise his right of appeal to a social security commissioner.

9.	That then is the background against which this application for permission is made.  The matter came before Jacobs LJ on paper and he granted permission to appeal but at that stage he did so on the original grounds which included the contention that the local authority had in fact expressly withdrawn the issue of recoverability from the tribunal.  That ground is no longer proceeded with. In particular reliance was placed on a letter of September 2005 alleged to have been sent by the tribunal to Mr Ghassemian and we are no longer asked to take that into account.  Indeed it was challenged by the local authority who wished the court to give directions for a handwriting expert in order to challenge the authenticity of that letter.   But that ground has been withdrawn and we have given permission for that ground to be withdrawn.

10.	I now go to the statutory scheme against which the issues on this appeal fall to be decided.  I start with Section 75 of the Social Security Administration Act 1992.  This provides that:

“Except where regulations otherwise provide, any amount of housing benefit [determined in accordance with regulations to have been] paid in excess of entitlement may be recovered either by the Secretary of State or by the authority which paid the benefit.”

11.	That section therefore requires one to go to the regulations and we have been taken to the Housing Benefit (General) Regulations 1987.  Regulation 76 provides that:

“Unless provided otherwise by the regulations any matter required to be determined under these regulations shall be determined in the first instance by the relevant authority.”

12.	It is common ground that that authority was the respondent.

13.	There are then requirements as to what must be contained in the decision made by the local authority but there is no issue that the local authority made a decision and it is not said that it was an improper one in terms of form.  Regulation 98 defines overpayment as meaning:

“… any amount which has been paid by way of housing benefit and to which there was no entitlement under these Regulations …”

I need not read any further.  And then under regulation 99:

“Any overpayment [is stated to be recoverable] except one to which paragraph (2) applies …”

Paragraph 2 applies in essence where an overpayment was caused by an official error where the claimant or any person acting on his behalf or any other person to whom the payment is made could not at the time of receipt reasonably have been expected to realise that there was an overpayment.

14.	The decision of the housing authority in this case, that is, the respondent, was both in terms of eligibility and recoverability.  That is to say that the authority did not consider that this was a case to which sub-paragraph 2 of regulation 9 applied.  They simply held that it was recoverable from Mr Ghassemian to whom it had been paid.

15.	The procedure for appeals is dealt with in Schedule 7 to the Child Support Pensions and Social Security Act 2000 paragraph 6 provides that:

“Subject to sub paragraph (2) [which is not relevant], [paragraph 6] applies to any relevant decision (whether as originally made or as revised under paragraph (3) of a relevant authority which – (a) is made on a claim for, or on an award of, housing benefit or council tax benefits…”.

Sub-paragraph (6) provides that:

“Where any amount of housing benefit or council tax benefit is determined to be recoverable under or by virtue of Section 75 or 76 of the [1992] Act any person from whom it has been determined that it is so recoverable shall have a right of appeal to an appeal tribunal.”

Sub-paragraph (9) provides:

“In deciding an appeal under this paragraph, an appeal tribunal – (a) need not consider any issue that is not raised by the appeal…”

16.	We have also been referred to the Social Security and Child Support (Decisions and Appeals) Regulations 1999 which provides that every decision of an appeal tribunal shall be recorded in summary by the chairman or in the case of an appeal tribunal, which is only one member, by that member.  It has then to be communicated and the decision in question in this case was that of Mr Singh which is already set out above.

17.	Now the application for permission to appeal is essentially made on the ground that this appeal raises an important point of practice, namely whether it is open to a judge in the County Court to determine the legal effect of a housing benefit tribunal’s decision for the purposes of CPR 70.5 when the terms of the tribunal’s decision are unclear and are a matter of dispute between the parties.  Reference is then made to Waltham Forest LBC v Roberts, a decision of this court to which I will refer in a moment.

18.	So the starting point for the application is CPR 70.5 which provides as follows:
“This rule applies subject to sub-paragraph (2) where an enactment provides that …”

Then I go straight to paragraph (a):

“A decision of a court tribunal body or person other than the High Court or County Court …”

[I omit (b)]
“may be enforced as if it were a court order or that any sum of money payable under that decision a compromise may be recoverable as if payable under a court order.”

19.	Section 75 of the 1992 Act contains a provision in sub-section (7) that:

“Where any amount recoverable under this section is to be recovered otherwise than by deduction from prescribed benefits then if the person from whom it is recoverable resides in England and Wales and the County Court so orders it is recoverable by execution issued from the County Court or otherwise as if it were payable under an order of that court.”

20.	So that is a provision to which CPR 70.5 applies and therefore an application can be made to the County Court for enforcement to the order and that is what happened in this case.  The relevant order was made in 2007.  It appears at page 52 of the bundle.  It was made by a District Judge.  It refers to the application and award made to the applicant on 17 February 2006 by Royal Borough of Kensington and Chelsea.  In fact that date was incorrect and that date should have been the date of the decision in this case in 2004 but nothing turns on that point and no objection has been made to the order on that ground either before the judge or before us.

21.	The basic submission made by Mr Rutledge is that it was not open to the County Court to determine that the decision of the housing authority stood notwithstanding the decision of Mr Singh.  It is submitted by Mr Rutledge that in order to determine that matter and to determine whether the decision was still in full force and effect the County Court would inevitably be drawn into questions of social security law and those were outside its jurisdiction on the authority of Waltham Forest v Roberts.  Mr Rutledge submits that it is a principle of social security law that where the decision is only made on one issue the appellant can go back for determination on any further issue.  The tribunal remains seized of this matter.  Moreover Mr Rutledge submits that in his experience this is what commonly happens.

22.	I now refer to the decision of this court in Waltham Forest BC v Roberts [2005] 37 Housing Law Reports at 21.  In that case a Recorder sitting in the County Court held that a party was entitled to housing benefit.  This court held that that decision was not open to him; that matter could only be determined in the manner provided for in housing benefit legislation.  The decision of this court however does not go on to decide that the County Court is never able to determine whether the housing benefit is payable under a decision of the housing authority.  In this case the County Court is required to decide whether or not the conditions for CPR 70.5 have come into operation.  It therefore has to decide whether there is a decision of a body to which CPR 70.5(1)(a) has been made.  It has to decide this matter to decide its own jurisdiction.  It inevitably follows in my judgment that it has jurisdiction to decide that matter.  Moreover it does not involve any investigation of the grounds of the tribunal decision or the grounds of the decision of the housing authority.  Indeed it would be odd if the County Court had to investigate those matters before determining the issue to its own jurisdiction.  But in my judgment there is no prospect of success in arguing that the County Court could not determine whether or not there was a decision of a body for the purposes of CPR 70.5.  Its own decision turned on that question. Moreover the County Court was entitled to proceed on the basis that if any party contended that that decision or that a decision of a tribunal was wrong it would have brought an appeal under the appropriate procedure.  The appellant accepts that it did not need the cooperation of the local authority to bring any appeal from the decision of Mr Singh or to take the matter back to Mr Singh.  What we are told is that Mr Ghassemian was never advised to appeal.  In my judgment, however, when the County Court was asked to enforce the decision of the housing authority it had to decide whether there was a decision of the housing authority which still stood and it was entitled to decide that matter.

23.	The appellant makes a number of further submissions with which I must now deal. Mr Rutledge submits that within the time limited for an appeal from the tribunal to the Commissioner Mr Ghassemian raised with the tribunal the question whether Mr Singh had dealt with the question of liability.  I should point out that Mr Rutledge informs us that between February 2006 and August 2007 Mr Ghassemian did not have legal advisors acting for him but he did at other times and indeed he did at the time of an oral hearing before the tribunal.

24.	But turning to the emails which I have already read out, the reply was that the Chair had not held that Mr Singh was liable to make the repayments.  The reply does not state that the tribunal had held that he was not so liable and this is consistent with what the tribunal judiciary stated in October 2007 in the letter, the relevant passages from which I have already read.  So the tribunal had not made a decision as to whether any resulting overpayment was recoverable. In those circumstances it seems to me that there is no prospect of success in arguing other than that the original decision of the housing authority still stood.  

25.	That takes me to Mr Rutledge’s next submission.  He submits that the original decision did not stand because in that original notice of intention to appeal Mr Ghassemian had stated by his solicitors that he wished to appeal the decision of the authority on all accounts including the question of recoverability, not just the question of eligibility.  The relevant letter is at page 44 of the appeal bundle.  However the position is that the tribunal only dealt with eligibility.  Mr Rutledge submits that there was no ruling which entitled Mr Ghassemian to appeal to the Commission with respect to recoverability.  I reject that submission.  Clearly if the tribunal had wrongly failed to deal with an issue before it, there was an error of law against which there could be an appeal. 

26.	Mr Rutledge relies on the decision of the Social Security Commissioners in R(H) Decision 3 of 2004 at tab 8 of our bundle of authorities. Here the Social Security Commissioners, having considered the legislation which I have already referred to, helpfully identified that there were two stages in the system of recovery in Section 75.  First there was the question of eligibility and whether there had been therefore an overpayment in excess of entitlement.  The Social Security Commissioners held that to complete this stage the authority must identify and fix with a presently enforceable legal liability one or more persons within the scope of its recovery powers.  This involves making a determination so as to crystallise the general potential liability of that person laid down in the legislation into an actual present liability for a specific sum of money, in other words a debt, on which it may proceed to actual recovery by offset, County Court proceedings or otherwise.  That is necessary to complete the first stage of identifying an amount of benefit overpaid in excess of entitlement.

27.	The Commissioners then went on to say:

“Such actual recovery or enforcement is the second stage to which the authority could only proceed once the specific legal liability to support it has been properly established and any dispute as to that legal liability resolved through the statutory appeal process by the tribunal.”

28.	And so Mr Rutledge submits that since the matter had been raised by the letter to which I have referred therefore the local authority could not proceed in the County Court to the second stage as described by the Commissioners because there had been no determination on that point.

29.	In my judgment there is no prospect of success on this submission.  The Social Security Commissioners were not dealing with a situation where the appeal concerned only the first stage and were therefore not attempting to deal with the situation where recoverability was not in issue on the appeal because it was not pursued.

30.	In my judgment it is quite clear that a party can elect not to proceed with the ground of appeal placed before a tribunal with respect to a housing benefit overpayment claim.  In my judgment there is no reason why he could not do this by conduct. Moreover the appellant accepts that there is no evidence that the recoverability ground was subsequently raised at the oral hearing of the appeal before Mr Singh.  Moreover it is clear from the legislation which I have already read that Mr Singh was not required to deal with any matter which was not raised in the appeal and it would have to have been raised at the oral hearing stage to be described as raised in the appeal. Accordingly, as I see it, there was no reason why the tribunal should deal with a matter which was raised in the original letter but not subsequently proceeded with.

31.	On this Mr Rutledge referred to the decision of the Social Security Commissioner in Decision CH/1229 of 2002.  In paragraph 13.1 of this decision the Social Security Commissioner says that:

“The tribunal is under a duty to consider and determine these issues [that is, the issues raised in the appeal] insofar as necessary to dispose of the appeal.”

And he goes on to say:

“The insofar as necessary qualification covers issues that are rendered unnecessary by the determination of another issue.”

32.	But as I read it it cannot be said that the Social Security Commissioner is saying that that is the only situation in which issues are rendered unnecessary for determination.  Indeed that would be contrary to the more general wording of the legislation.  The tribunal was not required to deal with any issue which was not raised in the appeal.

33.	Mr Rutledge also relies on the fact that the tribunal has inquisitorial jurisdiction and he refers to the well known law on this subject which is helpfully summarised in the authority at tab 10 of our appeal bundle R[IS]2008 at paragraph 26:

“It is not in our judgment open to doubt that, as an appeal tribunal under the Social Security Act 1998 hearing the claimant’s appeal against the departmental determination revoking her entitlement to benefit, Mr Warren was sitting as an “inquisitorial” tribunal.  By that we mean his function was to carry out a complete reconsideration and redetermination for himself of the facts and merits of the decision under appeal, the purpose being to ascertain and determine the true amount of social security benefit to which the claimant was properly entitled: see R v Deputy Industrial Injuries Commissioner ex parte Moore 1 QB 456 and R v Medical Appeal Tribunal ex parte Hubble 2 QB 228 referred to above; the Commissioners’ case R(S) 4/82 (especially paragraph 25) and the recent decision of a Tribunal of Commissioners in CIB/4751/2002 [reported as R(IB) 2/04] (especially paragraph 32); and the further recent reaffirmation of the principle in Kerr v Department for Social Development (Northern Ireland) UKHL 23 [R 1/04 (SF) (especially at paragraph 14 per Lord Hope, and paragraph 61 per Lady Hale).  In our judgment this is and remains a principle of general application to all proceedings in such tribunals.”

But the inquisitorial nature of the jurisdiction does not assist in this case when a matter has not been pursued before the tribunal or where it is implicitly withdrawn because the rules are quite specific that the tribunal does not have to deal with the matter in those circumstances.  The tribunal does not have to go out and find facts and investigate them and uncover acts which are not placed before it by the tribunal.

34.	Mr Rutledge’s next submission was that since the matter of recoverability is undetermined the appeal is incomplete and the matter can now go back to the tribunal. In my judgment that cannot be correct.  The tribunal has power to proceed without deciding an issue.  If Mr Ghassemian decided not to pursue the issue of recoverability there is no reason why that matter should be treated as remaining undetermined.  He has had an opportunity to have that matter determined by the tribunal and indeed an opportunity to take that matter on appeal but has not pursued those matters.

35.	Mr Rutledge also submits that the tribunal failed to make it explicit that an issue was not decided for this purpose in the decision R[IS] 2 of 2008 at tab 10.  The Commissioners held that a decision of the tribunal should explicitly record what has and has not been decided.  However, while that may have been the proper practice that Mr Singh should have adopted, and on that we have not had full argument, it cannot give rise to a ground for interpreting the decision as if that decision had not been decided.  The only remedy there could be by way of an appeal.  

36.	Mr Rutledge further submitted that there was in some way an onus on the authority to take the matter back to the tribunal.  I do not accept that submission, the authority had made its decision, it has not seen any need to revise it and it has not in fact been invited to revise it.  So in my judgment there is no prospect of success on that issue. Indeed it would seem odd if the County Court had to investigate what matters were determined by the tribunal.  In my judgment it should be able to proceed on the basis of the decision as it stands and I see no prospect of success in an argument that this matter should now be referred back to the tribunal in order that it can determine how its own decision should be interpreted or whether the recoverability issue should now be decided in Mr Ghassemian’s favour.

37.	Accordingly I would dismiss this application to raise new grounds of appeal.  As I have said, this court has already agreed to the withdrawing of all the other grounds of appeal.  In my judgment it should be possible to refer to the judgments of this court on which it has heard full argument notwithstanding that the matter is only a permission application.

38.	I would also be minded subject to anything Mr Rutledge wishes to submit to direct that the Civil Appeals Office should write to the Crown Prosecution Service to ask them to consider whether any action should be taken over the matters placed before Jacob LJ and which the appellant has decided not to pursue, namely the allegation that the tribunal wrote a letter to him stating that the local authority had withdrawn the issue of recoverability.

Lord Justice Moses:

39.	I agree

Lord Justice Sullivan:

40.	I also agree

Order: Application refused