CH 474 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal.

2	The claimant and appellant is appealing, with my permission, against the decision of the Ipswich appeal tribunal on 13 September 2001 under reference U 42 134 2001 00566.

3	I set aside the decision of the tribunal. The appeal is referred to a new tribunal for rehearing. That tribunal is to consist of members who were not members of any previous tribunal involved in this appeal. The tribunal is to reconsider the case in accordance with this decision.

4	I held an oral hearing of this appeal on 7 August 2003 at Harp House. The claimant attended, and was represented by Adrian Barry of counsel, for the Free Representation Unit. Ipswich Borough Council was not represented at the hearing, but indicated by letter that it fully consented to the Commissioner proceeding and making such decision as was thought fit.

5	This appeal is now somewhat old, delayed in part through problems in the claimant obtaining representation. As a result, the original main reason for which I granted permission to appeal, that there was a need to clarify the meaning and application of the concept of “continuous good cause” in housing benefit cases, has now been resolved by other cases. As Mr Barry accepted at the oral hearing, Commissioners have made clear that the concept of continuous good cause has the same meaning in housing benefit cases as in social security cases generally. See CH 2659 2002. It is largely a question of fact, to be determined in accordance with the formula adopted in R(S) 2/63 by a Tribunal of Commissioners and since endorsed by the Court of Appeal.  The test is:

“… some fact which, having regard to all the circumstances (including the claimant’s health and the information which he had received and that which he might have obtained) would probably have caused a reasonable person of his age and experience to act (or fail to act) as the claimant did.” 

6	I accept the submissions for the claimant that in this case the tribunal did not weigh all the relevant factors in deciding that the claimant had not shown continuous good cause for her late claim. Mr Berry took me through the full set of papers leading up to the hearing by the tribunal and he established to my satisfaction that the tribunal, while it had rightly paid attention to the information available or that might be available to the claimant, had not dealt adequately with the issue of the claimant’s mental health at the relevant times.  

7	There was evidence before the tribunal that the claimant suffered from psychological and psychiatric problems. The diagnosis is confirmed as obsessive-compulsive behaviour disorder.  The tribunal accepted that the claimant “had a personality disorder” and that “it was apparently a long-standing problem”. But it neither found more specifically what that problem was in medical terms or what were the results of that problem in practical terms at the relevant time. It found that it did not stop the claimant making claims in the past (though there is no finding about any help at those times). And it then found “as a fact” that the claimant’s state of mind and mental health were not obviously (italics mine) the reason for her acting or failing to act as she did. 

8	Mr Berry took issue with this analysis as inadequate in identifying the nature and effect of the claimant’s mental problems and in approaching the test of good cause as it applied to the claimant with those considerations in mind. If the tribunal did not have enough detail, then it should have sought further evidence either itself or from the claimant. In considering that point, it is relevant to remember that for an appeal about housing benefit the tribunal has no medical member so is not in the same position to evaluate medical evidence as it is for many appeals. But the particular issue on which Mr Berry submitted that the tribunal was wrong was that it had assumed reasonableness on the part of the claimant in a way that was, he argued, inconsistent with her mental problems.   Her problem made people react unreasonably, so it was inappropriate to apply the “reasonable person” test to her without that in mind.

9	I agree with that submission. The test from R(S) 2/63 refers to the “reasonable person” of the claimant’s age and experience. But it also refers expressly to the health of the person. If it be the case that a claimant suffers from a mental problem that makes him or her act unreasonably, then that must be borne in mind. In such a case, the terms of R(S) 2/63 must be adjusted to take that unreasonableness into account. As “reasonable unreasonableness” is meaningless, perhaps in the context where there is medical evidence that the reasonableness of the behaviour of the claimant is in question the test might be phrased as applying to the typical or probable reaction of a person of that age and experience who was suffering from the particular mental health problems of that claimant. But it is a question of fact. 

10 Applying that approach to this case immediately raises questions that cannot be answered from the statement of facts and reasons of the tribunal.  It did not identify the mental problems of the claimant or whether those mental problems made it likely that she would not act as a “reasonable person”.  I was not in a position to do that at the oral hearing, and in any event the Borough Council was not represented there. I therefore refer the case to a new tribunal to consider again whether the claimant did have continuous good cause for her late claim taking into account her mental condition together with all other circumstances. 

11	The claimant and her representative have put in further medical evidence as part of this appeal. That is not relevant to my decision, save that it indicates the direction of enquiry about the specific mental problems of the claimant that the tribunal did not pursue. But I refer that to the new tribunal. If the claimant and representative wish to submit any further medical evidence then they should send it to the tribunal office within one month of the issue of this decision. 
 
									David Williams
									Commissioner

									18 August 2003
[Signed on the original on the date shown]