[1999] UKSSCSC CIS_2132_1998 (08 January 1999)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CIS/2132/1998

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER JACOBS

Decision:

1.	I grant leave to the claimant to appeal against the decision of the Sutton Social Security Appeal Tribunal held on 5th August 1997 and waive the irregularity that there is no valid statement of the tribunal's reasons for its decision and of its findings of material facts annexed to the application.

2.	My decision on the appeal is as follows. It is given under section 23(7)(b) of the Social Security Administration Act 1992.

2.1	The decision of the tribunal is erroneous in point of law: see paragraphs 14 to 19.

2.2	Accordingly, I set it aside and, as it is not expedient for me to give a decision on the claimant's appeal from the adjudication officer's decision, I refer the case to a differently constituted tribunal for determination.

2.3	I direct the tribunal that rehears this case to conduct a complete rehearing. In particular, I direct the tribunal to proceed in accordance with my analysis of the issues arising and the law to be applied in paragraphs 14 and 17 to 19.

Who may write a tribunal's statement of the reasons for its decision and of its findings of material facts?

3.	The appeal tribunal dismissed the claimant’s appeal in her absence. A copy of the tribunal’s Decision Notice was issued to the claimant. The claimant asked for a statement of the tribunal's reasons for its decision and of its findings of material facts. A statement was written by the Regional Chairman rather than by the tribunal’s chairman. The statement recorded that it had been written by the Regional Chairman, because the tribunal’s chairman had ceased to be a chairman. The statement essentially reproduced the tribunal’s Decision Notice. The Regional Chairman later gave the claimant leave to appeal to the Commissioner.

4.	The statement that was written in this case was not a valid statement for the purposes of the Social Security (Adjudication) Regulations 1995 and the Social Security Commissioners Procedure Regulations 1987, because there is no power for a chairman other than the tribunal’s chairman to write a statement. 

5.	Regulation 23 of the Adjudication Regulations provides that “the chairman” must make a record of the proceedings and record in summary the tribunal’s decision: see regulation 23(2) and (4). “The chairman” must mean the tribunal’s chairman. Regulation 23 also provides that a statement of the tribunal's reasons for its decision and of its findings of material facts may be given orally at the hearing or in writing at a later date. If the statement is given orally at the hearing, the chairman must direct in what medium it is to be supplied to the parties to the proceedings. If the statement is given later in writing, the chairman must decide when it is written. See regulation 23(3A), (3B) and (3C). Again “the chairman” must mean the tribunal’s chairman. 

6.	Regulation 23 does not specify who is allowed or required to write the statement. Obviously, the tribunal’s chairman may do so. Perhaps (it is not necessary to decide this point) another member of the tribunal may be entitled to do so: for example, a member may have a particular expertise relevant to the case or the chairman may be too ill or have died. However, the statement cannot be written by someone who was not a member of the tribunal. The statement must set out the tribunal’s reasons for decision and findings of fact. As a practical matter, I cannot see how someone other than a member of the tribunal could be sufficiently familiar with these matters to write a statement. As a matter of interpretation of regulation 23, in the context of the other powers and duties conferred on the tribunal’s chairman by that regulation, it does not authorise someone who was not a member of the tribunal to write a statement. The statement may, of course, be composed by someone who was not a member of the tribunal, but if it is it must be adopted by the chairman (or, perhaps, another member of the tribunal).

7.	The individual who chairs a tribunal acquires the power to write a statement. The power arises by virtue of that individual having the status of chairman. However, it attaches to the individual and survives beyond the time when that individual’s appointment as a chairman ceases. The individual was the chairman of the tribunal when it determined the appeal and nothing that happens later can retrospectively change that fact. 

8.	So, the statement written by the Regional Chairman was not a valid statement. I must deal with this case on the basis that no statement has been supplied.

Was the leave to appeal granted by the Regional Chairman valid?

9.	An application to a chairman for leave to appeal to a Commissioner must have annexed to it a copy of the statement: see regulation 24(1)(b) of the Adjudication Regulations. As there was no valid statement, there was no valid application and the Regional Chairman had no power to grant leave to appeal.

Can I grant leave to appeal without a statement?

10.	As no valid statement was written, the time for appealing to a Commissioner under Schedule 2 to the Adjudication Regulations never started to run. However, a Commissioner has power to grant leave to appeal if the claimant has not made a valid application to the tribunal’s chairman: see regulation 3(2) of the Commissioners Procedure Regulations. A Commissioner has power to waive as an irregularity the absence of a valid statement under regulation 21 of those Regulations. See the decision of the Commissioner in CIS/3299/1997 and CIB/4189/1997.

11.	I grant the claimant leave to appeal to a Commissioner and waive the lack of a statement as an irregularity. 

The claimant’s service charges

12.	The appeal to the tribunal concerned the adjudication officer’s treatment of service charges in the calculation of the claimant’s eligible housing costs. The tribunal made two errors of law in dealing with the appeal.

13.	Services charges are eligible to be included as housing costs in the calculation of the claimant’s applicable amount for the purpose of determining her entitlement to Income Support: see paragraph 17(1)(b) of Schedule 3 to the Income Support (General) Regulations 1987. There are two relevant exceptions.

14.	The first exception is that charges must be disregarded if they are for services that are ineligible under paragraph 1 of Schedule 1 to the Housing Benefit (General) Regulations 1987: see paragraph 17(2)(b) of Schedule 3 to the Income Support Regulations. There is nothing in the papers to suggest that the tribunal had regard to the terms of Schedule 1. In particular, the tribunal should have considered paragraph 1(g) of Schedule 1 which provides that any charge is ineligible which is not connected with the provision of adequate accommodation. One of the charges for which the claimant was billed was for gardening. The tribunal should have considered whether this was an ineligible service charge that had to be disregarded. An earlier hearing of the appeal was adjourned for the adjudication officer to provide a submission on paragraph 17(2)(b), but the submission dealt instead with paragraph 17(1)(b). 

15.	The second exception is that charges must be disregarded if they are for repairs and improvements as defined by paragraph 16(2) of Schedule 3 to the Income Support Regulations. One of the charges for which the claimant was billed was for renewing a flat roof over one of the flats (not the claimant’s) in the block where the claimant lived. The tribunal decided that this had to be disregarded. 

16.	The relevant parts of paragraph 16(2) read:

“‘repairs and improvements’ means any of the following measures undertaken with a view to maintaining the fitness of the dwelling for human habitation or, where the dwelling forms part of a building, any part of the building containing that dwelling-

	(c)	damp proof measures;

	(g)	provision of insulation of the dwelling occupied as the home;

	(j)	repairs of unsafe structural defects”.

17.	The specific reference in head (g) to “the dwelling occupied as the home” overrides the earlier reference to “any part of the building containing that dwelling”. The roof was not part of the claimant’s dwelling occupied by the claimant as her home. So, the charge could not be disregarded under this head.

18.	There was no evidence before the tribunal to show that the roof had been renewed because of an unsafe structural defect. So, the tribunal was not entitled to disregard the charge under head (j).

19.	As regards head (c), a roof obviously prevents water entering a building and, thereby, prevents damp occurring. A roof fulfils a number of functions. It keeps out the elements. It provides security. It is an important part of the structure of the building. It is an element in the architectural and aesthetic appearance of the building. It is appropriate to describe a repair or improvement as a damp proof measure if that is its sole or predominant purpose. It is not appropriate to describe a repair or improvement in this way if that is merely one part of its function. So, a repair to a roof may, depending on its nature, be a damp proofing measure. However, the renewal of a roof does not fall within head (c).

Summary

20.	The tribunal's decision is erroneous in law and must be set aside. It is not appropriate for me to give the decision that the tribunal should have given on its findings of fact and it is not expedient for me to make further findings of facts. There must, therefore, be a complete rehearing of this case before a differently constituted tribunal. The tribunal will decide afresh all issues of fact and law on the basis of the evidence available at the rehearing in accordance with my directions. As my jurisdiction is limited to issues of law, my decision is no indication of the likely outcome of the rehearing, except in so far as I have directed the tribunal on the law to apply.

Signed:	Edward Jacobs
		Commissioner

Date:		8th January 1999