[2004] UKSSCSC CH_996_2004 (27 August 2004)

Facts of claimant's absence from home taking him out of regulation 5(8) and 5(8b) and (8c)

Backdating - not possible where no underlying HB entitlement - and insufficient good cause where there may be underlying CTB entitlement

1.	This appeal, brought with my leave, succeeds.  The decision of the tribunal on 4 12 03 was erroneous in law, as explained below, and I set it aside. However I think it expedient to make any necessary further findings of fact and give the decision I consider appropriate in the light of them.  The claimant has not been responding to communications from his representative, who therefore does not request an oral hearing. The decision I give is that the claimant had no underlying entitlement to housing benefit after the date on which he cancelled his return flight booked for 7 1 02.  By “underlying entitlement” I mean were the benefit conditions, except for the making of a claim, satisfied?  Therefore, apart from the period from 5 6 02 to 12 6 02 for which I accept it, good cause does not arise.  But lack of good cause does also preclude a backdated claim for council tax benefit.   

2.	Council tax benefit does raise different questions.  I decided in CH/2111/03 that since it depends on residence rather than occupying a dwelling as the home, absence does not necessarily affect entitlement, unless it amounts to abandonment by a claimant of the home as his sole or main residence.  The purported amendments to the Council Tax Benefit (General) Regulations by SI 1995 No 625, which introduced regulation 4C in similar terms to regulation 5 of the Housing Benefit (General) Regulations, were of no effect.  Council tax benefit will still require the making of a claim, but underlying entitlement can continue.  I am not sufficiently aware of the council’s claim practices, and pages 9 and 10 relate only to housing benefit, so I cannot usefully say anything more.  But in the light of my findings on good cause, this does not matter.      

3.	The appeal arises out of a request to backdate to 9 7 01 a housing benefit (HB) and council tax benefit (CTB) claim made on 5 6 02.  The 9 7 01 date was the one asked for (page 22), but I assume, as did the tribunal, that the actual date sought was 25 6 01, the day after the previous award ceased.  Backdating was not claimed until 12 6 02, but I agree with the tribunal that this further delay was adequately explained. Regulation 72(15) of the Housing Benefit (General) Regulations (HBGR) and regulation 62(16) of the Council Tax Benefit (General) Regulations provide that a backdating claim shall succeed where a claimant shows he had continuous good cause for failing to claim from the first date on which he can show this, or from 52 weeks before the date of the backdating claim, whichever is the later.  “Good cause” in this context means “some fact which, having regard to all the circumstances (including the claimant’s state of 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”: R(S)2/63(T).  But provided an authority or a tribunal has regard to this test, the decision on whether good cause exists is one of fact: CAO v Upton [1997] 2 CLY 4668.  To determine the appeal, it was also crucial to consider whether there was during this period underlying entitlement to benefit.  
Factual background
4.	  The claimant, born on 3 1 53, was in receipt of benefit when on 28 2 01 he and his wife left for Bangladesh.  He did not, in breach of regulation 75(1) HBGR, inform the local authority that he was going.  The purpose of the trip was said to be to visit his wife’s parents who were both unwell (in one version, see page 34), or to visit her mother who was unwell and the claimant’s wife had missed her father’s death and did not want to risk missing her mother’s (page 53).  The stay abroad was expected to last 4-6 weeks (page 22) or 6-8 weeks (pages 27, 53) or 2-3 months (page 34).  At some point the first return flight was booked for 11 6 01 (page 70).  I note that shortly after he left the claimant was made bankrupt on 7 3 01 in respect of a restaurant. 

5.	The existing award of benefit expired on 24 6 01, income support having been terminated on 19 6 01.  The local authority took the view that there would have been an overpayment for at least part of this award, but that it was exercising its discretion not to recover it.    

6.	The claimant, who suffers from Parkinson’s disease, had taken medication with him which he had hoped would be sufficient, but at some point this ran out and he contacted his daughters in Cambridge who arranged for him to have repeat prescriptions which were taken out to him by people from Cambridge.  At some point also he fell ill with viral hepatitis.  A doctor’s certificate at page 28, dated 18 10 01, said he had been ill with this “since last few months” and advised bedrest for a further 6 weeks.

7.	The claimant believes he fell ill during April/May 2001. He did not take the flight booked for 11 6 01, but booked a further flight for 7 8 01.  He did not take this either.  He says he had to wait 6-8 weeks (5-6 weeks at page 23) for a flight each time he booked one.     	

8.	He booked a further flight for 7 1 02, but relinquished this to be able to attend the 9 1 02 funeral in Bangladesh of his cousin (page 67) or brother (pages 22, 31, 34), who died in Cambridge on 4 1 02.  He says another flight was booked for 25 2 02, but this does not figure on the list at page 70. 

9.	There was a boating accident.  The claimant originally said (less than four months afterwards) that it was in May 2002, he thought on 1 May.  Later he revised this estimate to February, and a further doctor’s letter of 18 1 04 at page 99 (which was not before the tribunal) gave the date as 19 2 02, requiring 6-8 weeks treatment.  6 weeks would take him up to 2 4 02, 8 weeks to 16 4 02.  (I have not been able to find a doctor’s statement of 20 4 02, as suggested at page 68.  The certificate at page 69 clearly refers to someone else.)	
	
10.	Another flight was booked for 9 4 02, but the claimant says he was too ill to take it.  His daughter said on 18 4 02 (page 59) that he had a flight booked on 27 4 02.  He finally flew back on 28 5 02.
		
11.	The council’s Revenue Services sent out an HB claim form on 30 4 01 and a reminder letter on 11 6 01.  The daughters opened these but did nothing about them.  They say they kept thinking their father would be back soon.  It seems that the landlords (City Homes) are part of the council’s Housing Services, but a separate department from Revenue Services (page 24).  There was contact between the claimant’s daughters and the landlords (as set out at pages 60-60A, see also pages 36-36A) in August 2001, when it was made clear that the claimant was in Bangladesh and too ill to fly home, and that an older daughter wanted to claim on her father’s behalf.  She was told she could not.  Now, regulation 71(3) of HBGR permits (though does not require) the local authority to appoint a person over 18 to act for the person liable to pay rent.  It is also possible for the person liable for rent himself to appoint another person as his agent.  Part of the “good cause” alleged in this case is the failure to advise the daughters that there were ways in which they could have claimed HB on their father’s behalf.  This advice does not seem to have been given by Revenue Services but by the landlords, though it may still be considered as part of good cause.  There was a prospective HB claim by Nasmin in April 2002, for which the claimant provided written authority to the council to discuss rent details and stated he was too ill to travel (page 59A).  But this was not proceeded with because the claimant came back the following month.

12.	There are elegantly assembled submissions at pages 53-55 and 66-68, the latter accepting that there were or may have been some periods of non-entitlement.  The submissions smooth out the undoubted errors and inconsistencies in the claimant’s original account(s). 

13.	The tribunal conducted a careful hearing with the aid of an interpreter, the claimant’s representative Mr Flick and a council presenting officer, and made  findings on good cause, though the last period it allowed, from 25 3 02, does not have its start date explained, and the council has not been able to help me on it.  The tribunal also made some findings on underlying entitlement, but did not cover the whole of the period.  So I must set its decision aside.

“Underlying entitlement”
14.	There can only be backdating over a period where there was, subject only to making a claim, an entitlement to benefit. The relevant regulations are in HBGR regulation 5.  The general test of HB entitlement is whether a person is occupying as his home the dwelling on which he is liable to pay rent.  There are exceptions.  The claimant’s initial absence from 28 2 01 could have fallen within regulation 5(8): where a claimant intends to return to occupy the dwelling as his home and no part of it was let or sublet, he may be treated as continuing to occupy it where the period of absence is unlikely to exceed 13 weeks. The tribunal decided that once it became, within that 13-week period, apparent that the claimant would not be able to return, that exception no longer applied; but in any case the council had decided not to try to recover any of the undoubted overpayment before the end of the then current HB award.  

15.	The exception argued to be relevant here is a subparagraph of regulation 5(8B), coupled with regulation (8C):	

(8B)  This paragraph shall apply to a person who is temporarily absent from the dwelling he normally occupies as his home (“absence”) if –
(a)	he intends to return to occupy the dwelling as his home; and
(b)	while the part of the dwelling which is normally occupied by him has not been let, or as the case may be, sublet; and
(c)	he is –
(iii)	undergoing...in the United Kingdom or elsewhere, medical treatment, or medically approved convalescence, in accommodation other than residential accommodation; and
(d)  the period of his absence is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period.
(8C)    A person to whom paragraph (8B) applies shall be treated as occupying the dwelling he normally occupies as his home during any period of absence not exceeding 52 weeks beginning from the first day of that absence.

This appears to provide that although a period longer than 52 weeks will not, in exceptional circumstances, prevent the exception applying, benefit can only be paid for 52 weeks.

16.	Under regulation 5(9), “medically approved” means certified by a medical practitioner.  It has not been suggested that this is a term of art, and I see no reason, since the subparagraph contemplates treatment or convalescence abroad, why it should require the certifying medical practitioner to be in the UK.   

17.	The council contends that these exceptions cannot apply unless the claimant has fulfilled his regulation 75(1) duty and notified the council in writing of his intention temporarily to leave the dwelling.  Since this claimant did not, that should be the end of the matter.  But although failure to comply with regulation 75(1) may be highly significant as to causation in overpayment cases, I see nothing in the statutory materials to indicate that this attractively simple solution should be adopted. I note also that by not seeking to recover the overpayment for the balance of the award subsisting when the claimant went abroad, the council has effectively waived the breach of this duty where, for whatever reason, the DWP did not terminate the income support until well after the four weeks for which entitlement, at the most optimistic, could have continued under regulation 4(2) of the Income Support (General) Regulations.  The claimant would have saved everybody, not least himself and his daughters, an immense amount of trouble and worry if he had reported what his plans were, but I cannot find against him simply because he did not do so.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

18.	Mr Flick has pieced together the claimant’s evidence about the period of his absence to try and persuade the tribunal, and now me, that he had underlying entitlement, subject only to making a claim, for the whole of that period (regulation 5(8B) and (8C)), and that he had good cause throughout it for failing to make a claim (regulation 72(15)).  	

19.	For the sake of completeness, I deal first with the initial period of absence and regulation 5(8).  The claimant left for Bangladesh on 28 2 01.  Mr Flick submitted that once the claimant booked the return flight for 11 6 01, outside the 13-week period, it stopped being “unlikely” that his absence would exceed 13 weeks and became clear that it would.  The tribunal put this at 30 4 01.  Thereafter his underlying entitlement to benefit ceased, because he was not occupying the dwelling as his home and could not be treated under regulation 5(8) as doing so.  His subsisting award of benefit ran until 24 6 01, and the council decided not to recover any overpayment for this period.  		

20.	If and in so far as the claimant can then bring his absence within regulation 5(8B), he can however show underlying entitlement.  He was being medically treated or convalescing in Bangladesh, within (c)(iii), from a few months before 18 10 01 to around the end of November 2001, and during this time his absence was “unlikely” to exceed 52 weeks and he was making efforts to catch a return flight.  But from 1 12 01 to 18 2 02 he was not within (c)(iii).  And even if some further extended period of “convalescence” is allowed, once the claimant cancelled, albeit for understandable reasons, his return flight on 7 1 02, his absence became “likely”, because of the time it took to obtain flight bookings, to exceed 52 weeks and his underlying entitlement ceased.  The fact that thereafter he became ill again within (c)(iii), and that in the end he returned within 15 months of his originally leaving (regulation 5(8B)(d)), does not, it seems to me, revive entitlement once it has lapsed.          

Good cause
21.	The structure of regulation 72(15) (and CTB regulation 62(16)) is that any good cause period must immediately precede the date of the claim sought to be backdated:
 
72(15)  Where the claimant makes a claim in respect of a past period (a “claim for backdating”) and, from a day in that period up to the date of the claim for backdating, he had continuous good cause for his failure to make a claim, his claim for that period shall be treated as made on –
(a)	the first day from which he had continuous good cause; or
(b)	the day 52 weeks before the claim for backdating,
	whichever fell later. 

But there must be underlying entitlement.  Where, as here in relation to HB, that entitlement ended well before the date of the backdating claim, good cause cannot extend the period.   

22.	The tribunal considered good cause and accepted it (for a variety of reasons - ill-health, misleading advice to the daughters) from 25 6 01 to 1 12 01, and again from 25 3 02 (the date is unexplained) to the date of the backdating request.  It did not accept it for the period 2 12 01 to 24 3 02.  This decision has been criticised by Mr Flick, who says the question is not whether it was possible for the claimant to make a claim but whether it was reasonable to expect him to do so.   

23.	The real criticism for HB is that good cause does not avail you if there is no underlying entitlement requiring no more than the making of a claim to “activate” it.  The tribunal did not properly consider this.  I have, and my conclusion is that from the date the claimant cancelled his 7 1 02 flight, any regulation 5(8B) and (C) entitlement ceased, and since this happened several months before the backdating request, good cause cannot apply. 

24.	CTB is, as I said above, different.  As long as the home remains the claimant’s sole or main residence, there is underlying entitlement subject only to making a claim.  The backdating provisions are the same.  Mr Flick’s  submissions point to illness, lack of, or misleading, advice, lack of education, and overall the claimant’s belief that he could not validly make a claim from outside the country, all of which should have added up to a finding that he could not reasonably be expected to have made a claim.          

25.	I am not convinced that, on this test, there was continuous good cause for the whole period up to the reclaim on 12 6 02 for failing to claim CTB.  The claimant knew that HB and CTB had to be claimed at intervals, he had repeatedly done this, probably since 1989 but at least since 1995.  His daughters may not have told him about the renewal form on the assumption that he would be back soon, but by the time of the reminder letter the claimant had missed his original flight back, and he missed another in August.  This did seem to prompt the daughters to visit the landlords with a view to claiming themselves, and they were then given misleading advice.  It is said in Mr Flick’s first submission that this confirmed advice previously given to them by Revenue Services, but Mr Frost says at page 61A that no advice was sought from them between February 2001 and May 2002.  Mr Flick also said the daughters said the misleading advice was confirmed on a number of occasions by Ms Swann, but likewise there is no evidence of this in Paul Derry’s letter at page 60A.  The claimant had told his daughters to speak to Heather Williams, who had always helped him to make his claims, but they did not do this.   	

26.	There was clearly quite close contact between the claimant and his daughters, not only because of the medication regularly supplied but because he was advising them about what to do and who to see.  Even if I accept that the misleading advice given by the landlords to the daughters in August 2001 did have some effect on him, it amounted to no more than that they could not claim on his behalf.  He was never given express advice that he could not claim from outside the country; the most he can say is that he was not told he could do so.  He is not particularly old.  He may be illiterate and poorly educated, but he agreed in evidence that he could have got help from someone in Bangladesh to complete a claim form.  He knew arrears were building up.  Making all allowances for his illness, and his various expectations of coming home soon, I do not see that I can accept that it was not reasonable to expect him to make a claim once he cancelled his 7 1 02 return flight.  About 6 weeks elapsed before he again became ill, and a further 6 weeks after he got over this illness before he finally returned home.      

27.	By April 2002 Nasmin was drafting and sending to her father for his signature a letter giving leave for rent and other details to be discussed in connection with the claim that she was proposing to make.  It cannot have helped matters that he said at this point that he had a return flight for 27 4 02.  I do not think I can accept that this letter should have been treated as a claim on the claimant’s behalf.  It clearly was not. 

28.	My allowing this appeal does not therefore bring any advantage to the claimant.  His underlying entitlement to HB ceased in early January 2002.  His underlying entitlement to CTB probably continued, but my findings on good cause preclude the new claim being backdated.   		  

							(signed on original)		Christine Fellner
												Commissioner

												27 August 2004