[2005] UKSSCSC CH_404_2005 (09 November 2005)

PLH                                                                            Commissioner's File: CH 0404/05

SOCIAL SECURITY ACTS 1992-2000
	
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Appellant: 	London Borough of Richmond
Respondent:	[the claimant]
Claim for:  	Housing Benefit 
Appeal Tribunal: 	Fox Court
Tribunal Case Ref:  	
Tribunal date:	6 July 2004
Reasons issued:	28 September 2004

     1.     	This appeal by the housing benefit authority is dismissed, as in my judgment none of the criticisms made of the tribunal which heard the case at Fox Court on 6 July 2004 amounts to a sufficiently material error of law to warrant setting the tribunal’s decision aside.  
     2.     	This is an appeal against the decision of a chairman, Mr J P Singh, to uphold an appeal by the claimant against a decision of the authority given on 30 June 2003.  There were two parts to the authority's decision, first that the claimant was not entitled to the housing benefit and council tax benefit he had claimed from 30 January 2001 onwards because he possessed over £16,000 of capital at all material times, and second that housing benefit of £6,943.98 plus council tax benefit of £1,652.84, mistakenly overpaid for the period 5 February 2001 to 15 June 2003 because of the claimant's failure to disclose the existence of his capital, were legally recoverable from him.  
     3.     	The basic facts were simple.  It was beyond dispute that the claimant had had capital sums of the order of £30,000 to £50,000 standing to the credit of an account in his sole name with Lloyds TSB at all material times, and had said nothing about this when making his benefit claims.  When this was brought to light in a fraud investigation the authority was not satisfied with the explanations he gave, and not surprisingly made the decision under appeal.  The single issue on which the appeal depended was whether the explanation offered by the claimant (after initially claiming not to remember anything about the account) that the money really belonged to his father in Algeria and he was operating the account on the family's behalf, was to be believed.  After a full hearing the tribunal chairman decided that he did believe this explanation, and reversed the authority’s decision.  
     4.     	The authority appeals against that, on the three grounds that its points on the evidence were not all addressed in the tribunal chairman’s written decision sent to the parties only on 28 September 2004; the reasons given in that decision were inadequate to show that all factual points in the case had been considered; and that the long delay between the hearing date and production of the decision must itself have affected the tribunal’s perception of the case and the evidence, constituting a breach of natural justice. 
     5.     	I held an oral hearing of the appeal which had been directed on the application of the claimant’s representative.  Surprisingly, the authority elected not to appear and argue its case at the hearing at all even though it is the appellant.  The only appearance before me was therefore by the respondent claimant.  He attended and was represented by Ruth Coffey and Guy Micklewright, both of the Bar Free Representation Unit, who presented well prepared written and oral submissions on his behalf for which I am grateful.  
     6.     	The essence of the chairman’s reasons for deciding the case as he did appears from the following extract from the written decision statement at page 183 of the appeal file, where after giving details of various bank accounts operated by the claimant he said:
“4.  For the authority to succeed they must show, on the balance of probabilities, that [the claimant] owned, controlled or had a beneficial interest in the money.  The basis on which they arrived at this decision is set out in section 7 of the submission and based on inconsistencies in the appellant’s evidence.
5.  In support of his claim the appellant provided a sworn statement from his father who lived abroad, explained how the money was paid into the account, how money was transferred out of the account (indeed the statements recorded all foreign transactions) and letters from relatives and friends to corroborate his evidence.  He explained the circumstances leading to his two bank accounts and his financial situation with consistency and, in my opinion honesty.  His representative invited me to treat the money held as trustee for the father.  
6.  After careful consideration of all the evidence I accept [that] the appellant’s version and find that he did not have capital/assets in excess of £16,000 because he was not the owner of had control or had any beneficial interest in the money in the three accounts and therefore there is no recoverable overpayment.”
     7.     	It has not been suggested by the authority that this conclusion was in itself an impermissible one in the sense that no tribunal properly directing itself could have found the existence of a trust from the oral and written evidence produced.  The grounds of appeal all relate to the way specific points in the evidence were or were not dealt with by the tribunal in reaching its conclusion and giving its reasons, and the lapse of time before the written decision incorporating those reasons was produced.  The right course in those circumstances must I think be to confine myself to the grounds of appeal actually relied on in the authority's written submissions.  If the tribunal's conclusion is a permissible one as the authority does not dispute, it is not of course for me to substitute my own view of the evidence even though I have to say the adequacy of what the chairman relied on seems to me have question marks hanging over it on more than one ground: for example the claimed loss of recollection and other unsatisfactory replies when the claimant was interviewed (pages 100-118); the sudden transfers of money out of the account during the course of the investigation; and the production in the appeal of a materially misleading translation of a crucial document (the father's attestation of receipt of the money at pages 133-134) where a passage claiming ownership of the money, referring to it as “withdrawn from my money in the name of my son's account”, has been inserted in the “translation” without being present in the original signed document at all.  
     8.     	On the three grounds the authority did put forward in its written notice of appeal and supplemental submissions, I accept the arguments put forward by Ms Coffey and Mr Micklewright on behalf of the claimant.   It seems to me that they are correct in saying that although the chairman’s record of his decision is less clear and detailed than might have been ideal and does contain some apparent discrepancies and confusions, for example in his references to “control” rather than ownership and some mixing of the various bank account numbers shown in the evidence, this was a case depending almost entirely on the claimant’s credibility: on that there was no doubt of the chairman’s clear conclusion that he was to be believed, or of the finding that the crucial bank deposit was held on behalf of the father so that it did not belong to the claimant beneficially.  Given that clearly recorded conclusion, the further matters of detail and evidence referred to in the authority's grounds of appeal and submissions are really rendered secondary.  
     9.     	I also accept that the omission of specific reference in the tribunal's s decision to all the authority's points on the facts is not a ground for inferring any misdirection or that material points have been overlooked: in any case, the extract quoted above refers specifically to the section of the authority’s written submission in which its various points on the facts and the evidence were put forward, giving in my judgment a sufficient indication that the chairman did have these present to this mind.  (These included in particular, at section 7 paragraph 4, the fact of the claimant having continued to make withdrawals from his “father's” money even after he had his own separate account). 
     10.     	I do not therefore accept the authority’s contentions that the failure to refer in more detail to the specific points of facts and evidence it had argued, or to give a more detailed explanation than the chairman did of why he found the claimant’s evidence and explanation to be credible, amounted to an error of law such as to invalidate the decision. Once the chairman decided that he did believe the claimant despite the various grounds pointed out by the authority for doubting what he said, there could be only one result to the case and the reason for it was obvious.  
     11.     	Similarly, I accept the submissions on behalf of the claimant that the lapse of time between the hearing and the production of the written decision cannot be said to invalidate it.  The crucial question was the claimant’s credibility, and the chairman’s decision on that is clearly based on his impression of the evidence given at the hearing itself and recorded in his own contemporaneous notes which are clear and detailed and extend to six pages.  This is an experienced chairman, of course well used to recording and sifting evidence and assessing the credibility of witnesses, and I find no basis for the suggestion that the lapse of time must have clouded either his recollection or his judgment or had a deleterious effect on the decision reached.  
     12.     	The appeal is accordingly dismissed.

(Signed)
P L Howell
Commissioner
9 November 2005