THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The decision of the first-tier Tribunal given at Leeds on 28 July 2010 (the tribunal) is erroneous in point of law.  Accordingly, I set it aside and remit the case for rehearing by a differently constituted tribunal.  

REASONS FOR DECISION

The issues

1.	On 4 February 2010 a Decision Maker (DM), on behalf of the Secretary of State decided that the claimant is not entitled to the Severe Disability Premium (SDP) as part of her Income Support (IS) from 18 June 2009 to 25 January 2010.  

2.	The relevant matters, in the claimant’s circumstances, are, firstly, whether her son was ‘normally residing with her’ in that period and, secondly, on whom lies the onus of proof.  

Background

3.	The relevant facts of the case as set out in the DM’s written submission to the tribunal are these:

	“1.	[The claimant] is aged 54 years and normally lives alone.  She claimed income support on 09/08/07, on the grounds of incapacity.  She is also in receipt of disability living allowance and receives the highest rate of mobility component and the middle rate of the care component …

	2.	On 30/07/09 it was determined that [the claimant] was entitled to the severe disability premium from 20/01/09 because she lived alone … 

	3.	On 04/02/10 the decision maker determined that [the claimant] was no longer entitled to the severe disability premium from 18/06/09 because her son … had been claiming jobseeker’s allowance since 18/06/09 and stated that he lived at her address.  As a result, [the claimant’s] income support was revised from 18/06/09 and paid to her with the standard disability premium …

	4.	On 17/03/10 [the claimant] telephoned the department.  She stated that her son did not live at her address and she was not aware of his present whereabouts.  It was established that [the son] was no longer using her address for claiming jobseeker’s allowance from 26/01/10.  Consequently, [the claimant’s] income support was revised and the severe disability premium reinstated from 26/01/10 …

	5.	On 25/03/10 [the claimant] appealed against the decision not to pay the severe disability premium from 18/06/09 to 25/01/10.  She has outlined her disagreement with the decision in the letter of appeal and contends that she had written to the department stating that her son was back home but he did not do as he stated and only stayed one night.  She also contends that his post has always been sent to her address …”

4.	In the appeal documents put before the tribunal are screen prints provided by the DM;  these include the following entries:

	“24/06/2009 CIS shows [the son] claiming JSA to March 2009 so will not be entitled before this date.  JR858615D letter sent for date moved out.

	16/07/2009 GMS ISDL028 closed S/C.  JS

	30/07/2009  Entitled to SDP from 20.1.09 … 

	…

	04/02/2010 … Non Dep [the son] is claiming JSA from Custm HH and has been since 18/06/09 – SDP removed from 18/06/09 – Non Dep will have to inform JSA with his new address if he no longer lives with Custm …

	…

	8/02/2010 T/C frm cust [the son] does not live there … 

	… 

	17/03/2010 TC from cust. Son not living in HH.  She does not know where he is living at the moment …”

5.	In her letter of appeal and in a further undated letter, included in the tribunal papers, the claimant emphasises what she asserts is a poor relationship with her son and that she hoped that she could mend their relationship by letting him come back home as he had indicated he wanted; but she claims that in the event he stayed only one night “here and there”.

6.	In answer to an inquiry from the Tribunals Service as to whether the claimant  wanted an oral hearing, she ticked the “no” box, adding overleaf that she was in too much pain to attend but submitted details of her medication. 

The tribunal decision

7.	The tribunal, hearing the case in the claimant’s absence on 28 July 2010, disallowed the appeal.  The decision notice, presumably issued that day albeit not so annotated, read as follows:

“1.	The facts of the case set out in Section 4 of the papers were not as facts in dispute and were therefore found as facts by the Tribunal.

	2.	The Decision Makers submissions and an adequate statement of the applicable law are in Section 5 of the bundle.

	3.	The Appellant’s arguments in support of the appeal are also in the bundle.

	4.	Having considered the evidence, the points made and the submissions put forward by both parties to this appeal, I prefer those of the Decision Maker and I adopt them as reasons for this my decision.”

8.	A letter from the appellant received 10 August 2010, stating her dissatisfaction with the adverse decision and referring to her claimed chronic pain and dizziness, was rightly interpreted as a request for a statement of reasons for the decision.  This was issued on 26 August 2010 in the following terms with respect to reasons:

	“3.	In reaching my decision I had the benefit of reading and considering a bundle of papers but not of seeing and hearing from the Appellant who elected an Appeal on the papers.

4.	Simply put I accept the Decision Maker’s Submissions in Section 5 of the papers and I have nothing further to add to my Decision Notice.”

Appeal to the Upper Tribunal

9.	The claimant appealed to the Upper Tribunal by letter received 1 September 2010.  The claimant asserts that the breakdown in the relationship with her son occurred because he had been imprisoned some time previously.   She continues:

	“The income support stopped the severe disability until I sorted it out with them and they were satisfied that he didn’t live here and quite rightly so because I am telling the truth.  I didn’t know anyway that family couldn’t live with you, thought in all innocence that the family meant no partners but anyway he never came back.   The income support then gave the severe disability premium back to me.”

10.	Permission to appeal was refused by the tribunal judge but given by Upper Tribunal Judge Turnbull on 28 January 2011 in the following terms:

	“It is arguable  that the First-tier Tribunal went wrong in law in not adjourning, or at least considering whether to adjourn, the case for an oral hearing, in view of the fact that the appeal turned on whether the Claimant was to be believed when she said that her son had not been living at home.  It is arguable that the appeal could not properly be determined on the papers alone, if the Claimant would have been willing to attend an oral hearing.

	Alternatively, if it was minded not to believe the Claimant on the written evidence, it could specifically have requested documentary proof of the fact that the Claimant’s son had been living elsewhere during the material period.”

11.	A submission on behalf of the Secretary of State supports the appeal.  The submission summarises the claimant’s grounds of appeal thus:

	“ … her son agreed to move back home but then went back on his word and never moved in.  He has not lived with her for approximately 3 or 4 years since he went into prison.  His post has always come to her address as he cannot trust anyone else.  The claimant was unaware she was not allowed to have family living with her.”

12.	The Secretary of State points out that under paragraph 13(2)(a)(ii) of Schedule 2 to the Income Support (General) Regulations 1987 (ISGR), a necessary condition for an award of SDP to a single claimant is that:

	“ … he has no non-dependants aged 18 or over normally residing with him or with whom he is normally residing … “.

Regulation 3 of the ISGR defines “non-dependant” and patently includes the son.  However, the Secretary of State submits that whether or not a person is “normally residing with” the claimant is a question of fact and that there is insufficient evidence to confirm where the claimant’s son normally resided, a matter not considered either by the Secretary of State or by the First-tier Tribunal Judge.  

13.	The claimant has referred again to the amount of pain she suffered and also that she could not concentrate because of her medication.  She said that she believed that her son was of no fixed abode until recently he had moved in with a friend of his at an address which she gave.  

Discussion of the submissions

“Residing”

14.	The first question is whether the son resided in the same dwelling as the claimant in the period in issue.  There are analogies to habitual residence cases.  At paragraph 19 of R(IS)6/96 the Commissioner said:

	“To count as resident, a person must be seen to be making a home here, even though it need not be his or her only home, nor need it be intended to be a permanent one, provided that it is genuinely home for the time being”.

But it is also accepted that if a person makes his home in different parts of the country for a part of each year, he or she may simultaneously be resident in both places.   Alternatively, a person may have “no fixed abode” and therefore no residence at all.  It is a question of fact whether the quality of a person’s stay in a particular dwelling constitutes it as a home for the person concerned; or alternatively is only a place where that person transiently or temporarily lives.   Whether the claimant’s son had a home in the same accommodation as the claimant at the relevant time has never been addressed.

“Normally”

15.	In CSIS/100/93, Commissioner Walker recognised that, after the first question is answered in the affirmative, i.e. whether a person has a home in the same house as the claimant, a second point then arises.  At paragraph 5 he said:

	“But the wording here has also a more continuous meaning about actually being there and so “normally resides”.  That will introduce the second question, namely whether the claimant’s daughter normally lived with the claimant – or whether she was normally to be found living somewhere else.  And it will matter not where else.  On these questions the address that the daughter gave for correspondence is a possible indicator.  Equally, having regard to the other places in which she dwelt from time to time, it may be that the tribunal will conclude that the daughter had no “fixed abode” and so no home or residence.   Ultimately it is a matter for common sense and judgement.  But the two questions basically are whether the claimant’s daughter made such a home as she had with the claimant and, perhaps more importantly, whether she was normally to be found dwelling there.”

Thus, the first question in the present case is whether the son made a home in his mother’s accommodation and, secondly, whether such was his usual abode at the time.

“Reside with”

16.	This is a third point.  One has to look at the property, and at the relationship between the parties, in context, to determine, as a matter of fact, whether they “reside with” each other, or rather that they each have a separate home in the same residence or dwelling.  RK v SSWP [2008] UKUT 34  (AAC) decided that people are only to be regarded as residing with each other if they are sharing accommodation in a way that is consistent with living in the same household.  A normal domestic set-up, for example, one containing a parent and an adult child, who together remain a happy family unit, will inevitably be described as one in which each member normally resides with the other.  This is because they share the accommodation as their same residence when one looks at the living arrangements as a whole; this will be so even though grown up children in a family may tend to keep to their own bedrooms, eat at different times from the rest of the family and socialise less with them in the common living areas.  It is a different situation from those who are in accommodation of multiple occupancy, like a block of bedsits.  However, if parent and child deliberately constitute wholly different households, for example because they are estranged, then they will not be regarded as residing with each other.  

Burden of proof

17.	The above three questions are inextricably linked together; it is an issue of fact and degree whether the son is “normally resident with” the mother and no list of factors can be exhaustive;  but the son must have lived with his mother for long enough to regard sharing her house in a common household as his usual home.  The relevant factors include: the relationship between the parties, how much time is spent at the claimant’s address, where post is sent, where clothes and other belongings are kept, the length and pattern of stays with the claimant and whether there is another home.  

18. 	These are not going to be easy matters to determine in the present case, because it is likely the claimant will continue to plead health reasons for not attending a hearing.  Domiciliary visits are not viewed with great favour on account of their expense.  If the son was simply bedding down on someone’s floor during the relevant period, then it may be difficult for the claimant to provide documents to prove that he was living somewhere else at the material time and, if her relationship with the son is as she says, it is unlikely that the son would voluntarily come as a witness. 

19.  It is therefore important to restate what has not hitherto been emphasised in the present appeal, nor acknowledged by the tribunal, which is that the DM’s decision removing SDP from 18 June 2009 to 25 January 2010 must have been a supersession; therefore the burden lies on the Secretary of State to establish the facts justifying that supersession.  This is not to say that adverse inferences may not be drawn against the claimant if the evidence justifies that but, in the final analysis, the Secretary of State must show that it is more probable than not that the son normally resided with the claimant between the relevant dates.  

20.	The evidence is very scant at present.  The DM should explain what is meant by the entries referred to at paragraph 4 above and produce copies of the letters to which reference is made.  It seems that there was some communication between the department and the claimant about the presence of the son, at least with respect to an earlier date, and this might shed light on what is asserted happened later.  As the Secretary of State bears the burden of proof, it would be wise for the Secretary of State to produce all relevant documentation and also to send a Presenting Officer to an oral hearing.  

Adjournment

21.	A tribunal has a discretion, which must be exercised judicially, whether or not to adjourn, either at the request of one of the parties or on its own volition if an adjournment might seem desirable in the light of certain facts.  The actual exercise of a tribunal discretion is something with which I cannot interfere unless it was unreasonably carried out. 

22.	I agree with Upper Tribunal Judge Turnbull that it is arguable that the First-tier Tribunal erred in not at least considering whether to adjourn in order to give the claimant one more chance to attend at an oral hearing once it had clearly communicated the importance of this to her and why.  If the tribunal had provided rational reasons why, having considered the matter, it considered it inappropriate to adjourn for an oral hearing, that would be different, but the tribunal erred by failing even to raise and address the matter. 

Summary

23.	The tribunal’s decision is thus set aside for its failure, expressly or by implication, to make sufficient findings on the issue disputed with respect to the claimant’s entitlement to SDP viz whether the son normally resided with her in the relevant period.  It is for the Secretary of State to make out the case for supersession.  There will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal.  My jurisdiction is limited to issues of law so my decision is no indication of the likely outcome of the rehearing. 

				(Signed)
				L T PARKER
				Judge of the Upper Tribunal
				Date: 15 September 2011