IN THE UPPER TRIBUNAL 			Appeal No: CH/3343/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright 

DECISION 

	The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Harlow on 8 May 2012 under reference SC133/11/01050 involved an error on a point of law and is set aside.

The Upper Tribunal is not in a position to decide whether the appellant was entitled to housing benefit between 21 July 2003 and 12 July 2010.  It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.     

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

DIRECTIONS

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

(1)	The new hearing will be at an oral hearing.

(2)	If the appellant has any further evidence that she wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Birmingham Appeals Service Centre within one month of the date this decision is issued.

(3)	The First-tier Tribunal should have regard to the points made below. It is not bound by the income support tribunal decision of 13.04.11.  It is required to investigate and decide on the evidence before it (a) whether the appellant was living together as husband and wife with Mr B between July 2003 and July 2010, (b) whether she was in consequence overpaid housing benefit and council tax benefit during this period, and (c) whether those benefits are in law recoverable and, if so, from whom they are recoverable.           

REASONS FOR DECISION 

Issue   

1.	The issue this appeal is concerned with is whether a First-tier Tribunal hearing an appeal against a decision that a person is not entitled to housing benefit (or council tax benefit) for a past period is bound to decide the appeal against the appellant where another First-tier Tribunal has decided that the appellant was not entitled to income support for that same period.
  
2.	The answer, in short, is no, and the First-tier Tribunal erred fundamentally in law in deciding it was so bound.  

Introduction and Background 
          
3.	This is an appeal by the claimant from a decision of the Harlow First-tier Tribunal (SEC) dated 8 May 2012. I will refer to this from now on as “the tribunal”. The tribunal upheld the decision of Chelmsford Borough Council (“the Council”) of 7 February 2011. The Council’s decision was to the effect that (a) the appellant was not entitled to housing benefit (HB) and council tax benefit (CTB) between 21 July 2003 and 12 July 2010, (b) in consequence, recoverable overpayments of housing benefit amounting to £28,454.14 and council tax benefit amounting to £9,198.16 had been made to the appellant, and (c) those sums were recoverable from her.

4.	During the above periods the appellant had originally been entitled to income support and had thus been “passported” on to HB and CTB on the back of her entitlement to income support.  I will return later in this decision to how this passporting works under the relevant legal rules. However, in the course of 2010 (the exact dates are immaterial), a decision-maker on behalf of the Secretary of State for Work and Pensions had revised the decision of 30 July 2003 awarding the appellant income support from 17 July 2003 and decided that the appellant was not entitled to income support with effect from that date. He did so on the basis that the awarding decision was based on a mistake as to, or ignorance of, a material fact, namely that from 17 July 2003 the appellant had been living together as husband and wife with Mr B and Mr B’s being in full-time remunerative work meant that as a couple they could not qualify for income support from 17 July 2003.  (As the appellant and Mr B, it seems, remained married throughout most of the overpayment period, the test for when they were married was whether they were “members of the same household”: per s.137(1)(a) Social Security Contributions and Benefits Act 1992 (“SSCBA”)).

5.	The Council in its decision of 7 February 2011 followed (I use this loose term advisedly) the Secretary of State’s decision(s) of 2010. No separate investigation was carried out by the Council into whether the appellant and Mr B were married and members of the same household between July 2003 and July 2010 (or what Mr B’s income or capital was).                   

6.	The appellant appealed against both the income support and the HB/CTB decisions. Her case on both appeals, as I understand it, was simply that she and Mr B were not living together or sharing the same household between July 2003 and July 2010. 

7.	The income support appeal predated the HB/CTB appeal.  In its appeal response on this HB/CTB appeal, the Council said (a) that the appellant’s entitlement to HB and CTB was dependent on her entitlement to income support, and (b) as the income support decision was currently under appeal and the HB and CTB appeal could only be decided once the income support appeal had been decided, the HB/CTB appeal should be joined to the income support appeal. I assume by this request the Council was asking for the HB/CTB appeal to be heard and decided at the same time, and by the same tribunal, as the income support appeal.  That was plainly a sensible request.  Had it been granted then it is unlikely this tribunal would have fallen into error.

8.	The income support appeal was decided on 13 April 2011. It was decided on the papers and without a hearing. The reasons why it was decided in these circumstances are now immaterial.  Judge Thomas upheld the decision removing entitlement to income support with effect from 13 July 2003 and also upheld the subsequent recoverable overpayment decision concerning income support.  No statement of reasons for the decision was provided, again for reasons that are now immaterial. However, it seems plain from the decision notice dated 13.04.11 (page 39) that Judge Thomas concluded on the paper evidence that the appellant was sharing the same household/was living together as husband and wife with Mr B between July 2003 and July 2010. (I have used the language of both relevant tests for a “couple” in section 137(1)(a) SSCBA because it seems that at some stage either in or before 2010 the appellant and Mr B divorced).

9.	In terms of chronology the next appeal was another income support appeal decided by Judge Crawford at Harlow on 20 September 2011 at a hearing at which the appellant attended. The appellant’s appeal was successful. However, that appeal was concerned her entitlement to income support from 7 October 2010. It therefore was not concerned with, nor did it overlap with, the period from July 2003 to July 2010. However, it is worth noting that that tribunal having seen and heard from the appellant and (apparently) seen documentary evidence from her, but not having seen the 350 pages of written evidence before the 13.04.11 tribunal, was of the view that the appellant’s oral evidence “was consistent and believable indicating separation from her husband within 12 months of marriage and before application for Income Support”. It is admittedly not entirely clear which application for income support the tribunal is here referring to, the one in July 2003 or the one in October 2010, but the context seems to point strongly to it being  the July 2003 claim.

The First-tier Tribunal’s decision 

10.	The appellant’s appeal against the Council’s decision of 7 February 2011 came on for hearing before District Tribunal Judge Jeffreys on 8 May 2012. The appellant attended. The Judge was clearly aware of the two preceding tribunal decisions concerning income support. It is not now really a matter for me, but one sensible course of conduct that was open to Judge Jeffreys, faced as she was with the two previous decisions, on one of which the appellant had not attended the hearing of the appeal and the second of which she had attended and in which the tribunal had raised concerns as to the correctness of the previous decision, was to have set aside both of the previous tribunal’s decisions under rule 37 of Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the “TPR”). Such a course may have been justified under the “interests of justice” on the basis that the appellant did not attend one of the tribunals and the one she did attend perhaps cast doubt on the basis of the decision made by the tribunal which she did not attend.
 
11.	Judge Jeffreys upheld the Council’s decision of 7.02.11.  Her statement of reasons of 21.08.12 helpfully described the decisions on the two income support appeals.  The reasons then refer to Mr Justice Kennedy’s judgment in R –v- HBRB Penwith District Council ex parte Menear (transcript on pages 48-59 – its most common citation is (1991) 24 HLR 115), and his alleged confirmation that “there will be times when a local authority responsible for administration of housing benefit will be fettered a decision of the Department of Social Security in relation to income support”.  (This passage appears on page 7 of the transcript (page 55 of the appeal bundle) at letters B-D. The word “occasions” is used instead of “times”.  The passage is not in fact words falling from Mr Justice Kennedy but part of his summary of what counsel for Mrs Menear submitted.  However that is a minor and inconsequential criticism. The gist of the decision in ex parte Menear is covered by the above words, but the “occasions” when a local authority is fettered is the critical issue).     

12.	Building on this quote from ex parte Menear the tribunal concluded:

“The appellant in this appeal falls in exactly the same situation as arose in [ex parte Menear].  Her entitlement to Housing Benefit and Council Tax rests on her entitlement to Income Support.  The DWP ended that entitlement as they found she was living as husband and wife with Mr [B].  That decision has been upheld by a tribunal.  Accordingly both the respondent in this appeal and this tribunal are bound by that finding and can not revisit the facts of whether or not the parties were living together from 21/7/03 – 12/7/10”. (The underlining is added to emphasise the two serious errors of law made by the tribunal).

Permission to Appeal
 
13.	Permission to appeal to the Upper Tribunal was refused by Judge Jeffreys on 20.09.12 where she emphasised that “[a]s has been clearly explained in the statement of reasons the Tribunal had no alternative than to make the decision that it did as a result of [the appellant’s] Income Support ending. There was no other decision that it could make”.  However, on the renewed application to the Upper Tribunal I granted the appellant permission to appeal on 24 October 2012 because:

“I consider the grounds of appeal put forward on behalf of the appellant are arguable.  In my judgment, in saying, as the First-tier Tribunal did in paragraph 8 of the statement of reasons, that “The appellant’s entitlement to Housing Benefit and Council Tax (sic) rests on her entitlement to income support. The DWP ended that entitlement …..That decision has been upheld by a tribunal.….Accordingly both the respondent in this appeal and this tribunal are bound by that finding and cannot revisit the facts of whether or not the parties were living together..”, it is strongly arguable the First-tier Tribunal erred in law.  This is because ex parte Menear is only authority for the proposition that a local authority is “bound” (to use the First-tier Tribunal’s expression) by a DWP decision where the DWP have decided that a person is entitled to income support. Where instead the DWP have decided that a person is not entitled to income support it is very arguable that that decision is not binding on the local authority deciding entitlement to HB/CTB (see para: 13 of CH/4014/2007), and it (and on appeal the First-tier Tribunal) is thus required to investigate the entitlement issues for itself”.
The respondent’s stance 

13.	The Council does not support the appeal.  It argues that the tribunal correctly applied the law and that ex parte Menear is not limited in the way I suggested when giving permission to appeal.  It also makes submissions on CH/4014/2007 and R(H)9/04, and makes a further argument which, in so far as I understand it, is that the “living together as husband and wife” decision was a decision made by the Secretary of State for Work and Pensions and not by the Council and so could only be challenged on an appeal against the Secretary of State’s decision.  I confess that this seems to me no different to the Council’s ex parte Menear argument.

The appellant’s observation in reply 

14.	Through the CAB now acting for her, the appellant takes issue with the Council’s arguments and argues that the tribunal did err in law.

Errors of law
 
15.	It is clear to me that the tribunal erred in law both in accepting that the Council was bound by the income support non-entitlement decision and in deciding it was bound by the First-tier Tribunal’s decision upholding the income support non-entitlement decision.  

The statutory scheme and scope of ex parte Menear
  
16.	Both the Council and the tribunal were in error in considering that the ratio of ex parte Menear applied on the facts of this case.  Menear is authority for the proposition that where a claimant for housing benefit (or council tax benefit) is on income support all of her (and her partner’s (if she has one)) earnings, income and capital are to be disregarded. This now, however, is the statutory consequence of the disregards in paragraph 12 of Schedule 4, paragraph 4 of Schedule 5 and paragraph 5 of Schedule 6 to the Housing Benefit Regulations 2006 (the “HB Regs” – and its state pension credit age counterpart and the equivalent CTB Regulations).

17.	There have been a number of decided cases that have addressed in what circumstances a local authority may not be bound by a decision made on behalf of the Secretary of State for Work and Pensions that a person is entitled to (and thus “is on”) income support: see, for example R-v- South Ribble District Council HBRB ex parte Hamilton [2000] 33 HLR 102 (CA) (if local authority can show that a person is fraudulently claiming income support then it is not bound by the Secretary  State’s decision awarding income support).  These cases are all predicated, however, on the starting point that a local authority is bound by law to disregard a claimant’s earnings, income and capital if he or she is on income support.  But there is nothing in the law (statutory or case-law) that lays down that a local authority is similarly bound to follow the Secretary of State where he has decided that a claimant is not entitled to income support. In other words, and to put this as pithily as possible, Menear does not work the other way around.

18.	The fallacy in the general reasoning of the Council and the tribunal can be revealed by considering a case where a single person claims income support but is refused because he is in remunerative work (say of 30 hours a week – per section 124(1)(c) of the Social Security Contributions and Benefits Act 1992 and regulation 5(1) of the  Income Support (General) Regulations 1987 (the “IS Regs”)). If he then claims housing benefit it cannot lawfully be refused on the basis that he is not entitled to income support as (a) there is no remunerative work disentitlement rule in the housing benefit legislative scheme (it is intended to cover those in full-time but low paid work), and (b) the level of his earnings may entitle him to some housing benefit. 

19.	Indeed that issue arises on this appeal even assuming the Council and the tribunal were correct in the view that they were bound by a living together as husband and wife “decision” of the Secretary of State for Work and Pensions, because even here an assessment would have to be made of what the “couple’s” income was to assess their level of entitlement to housing benefit.  Even on the Council’s and the tribunal’s (wrong) reasoning, the fact that the Council was bound by the living together as husband and wife decision and the decision that the appellant was not entitled to income support told the Council nothing about what the couple’s income or capital was and whether it disqualified them from receiving housing benefit.  

20.	Furthermore, the fallacy remains even if the consideration is narrowed to what I will call “living together as husband and wife” cases (a term which I use compendiously to refer to such cases and cases where the issue is whether a married couple are members of the same household). 

21.	To start with the decision of the Secretary of State in 2010 was not that the appellant was living together as husband and wife with Mr B from July 2003. That was but a building block to the Secretary of State’s decision in 2010 that the appellant was not entitled to income support (see R(IS)13/05).  Accordingly, the terms of section 17(2) of the Social Security Act 1998 (or more accurately the fact that no relevant regulations have been made under that enactment) mean that even a subsequent Secretary of State decision maker would not be bound by the determination that the appellant and Mr B were living together as husband and wife (see, for example,  CIS/1330/2002 – case-law which I will return to when addressing Judge Jeffreys’ view that she was bound by the income support tribunal’s decision), and if that is the case it must be even less the case that a local authority decision-maker is bound by such a determination.  All that the Council was bound by was the Secretary of State’s decision of 2010 that the appellant was not entitled to income support from 17 July 2003. But that decision said nothing about whether she was entitled to housing benefit from July 2003; indeed it could not do so as the Secretary of State had no jurisdiction to decide that issue.     

22.	Moreover, there is nothing in the HB statutory scheme that dictates that a local authority is bound by the Secretary of State’s non-entitlement decision and the reasons for it (or the determinations on fact that led to it).  The paragraphs in schedules 4, 5 and 6 to the HB Regs referred to above are the exceptions to this, but they apply only where a person “is on income support”, they have no application where a person is not on income support. 

23.	Indeed it is probably wrong legally to use language such as “dictates” or “bound” even in respect of the situations where a person is on income support.  This is because all schedules 4-6 to the HB Regs provide for is that earnings, other income and capital which a claimant has are to be disregarded, but strictly speaking, and as a matter of construction of the statutory scheme, it does not absolve a local authority from identify whether a person has earnings, other income or capital.  The wording of regulations 36(2) and 38(2) of the HB Regs in particular point to the net earnings from employment or net profit from self-employment having to be calculated before the disregards in schedule 4 are to be applied.  However, as the effect of the disregards in paragraph 12 of schedule 4 and paragraphs 5 in Schedules 5 and 6 is to disregard all the earnings, other income and capital of the claimant (or his partner if he has one) if he is one income support, administratively at least it probably remains sensible to talk in terms of a local authority being bound in income and capital terms where the claimant is on income support.                                    

24.	Given that there is no such statutory animal as a living together as husband and wife decision and the limited binding effect of the income support decision, and given the failure of the housing benefit (and council tax benefit), statutory schemes  to carve out a special category of binding determination where the Secretary of State for Work and Pensions has determined that the claimant is living together as husband and wife with another person, it can only be case-law which countermands this and creates the legal effect for which the Council contends. To that I now turn. However, I say immediately that there is nothing in the case law that does this. It in fact, entirely unsurprisingly, all points the other way and follows faithfully the logic of the statutory scheme mapped out above.  

25.	I start with ex parte Menear.  The first, and perhaps most important point to note about this decision is that Mrs Menear was entitled to income support at the time her claim for housing benefit was decided (see page 50 of bundle at letters D-F).  Mrs Menear’s argument was that it was irrelevant for the local authority to examine her capital and income (and indeed the combine income of her and any alleged parent), because those issues had already been resolved by the (then) Department for Social Security (“DSS”) on the claim for income support and the DSS’s decision “left the local authority with no option but to pay housing benefit at the full rate” (page 51 letters A0B – the underlining is mine). I have underlined these words to emphasise the nature of the case in ex parte Menear, which was concerned with whether a local authority could examine separately a person’s capital and income where she was on income support.  It was thus nothing to do with the consequences for a local authority if the claimant was not on income support; less so has it anything to say on whether a “living together as husband and wife decision” has any legal status or consequence for other benefits.  

26.	Mrs Menear’s argument continued that she was entitled to full housing benefit under section 20(7)(c)(i) of the Social Security Act 1986 (now section 130(1)(c)(i) of the Social Security Contributions and Benefits Act 1992) because her income and capital (and those of her alleged partner) had to be disregarded under paragraph 10 of Schedule 3, paragraph 4 of Schedule 4 and paragraph 5 of Schedule 5 to the Housing Benefit (General) regulations 1987 (see page 54 letters A-H and page 55 letter A-B).  The provisions of these paragraphs in those Schedules are in identical terms to the relevant paragraphs in schedules 4-6 of the HB Regs.  It was these submissions of Mrs Menear that Mr Justice Kennedy accepted and led him to conclude Penwith District Council was “bound” by the DSS’s decision.   However that was in the context where she was on income support at the material time and the legislative force of the relevant disregards in Schedules 3-5 of the then housing benefit regulations. 

27.	It is in that context that the statement “there will be occasions when a local authority responsible for the administration of housing benefit will be fettered by a decision of the [DSS] in relation to income support” in ex parte Menear has to be read: those “occasions” being when the housing benefit claimant is “on income support”.  That is obvious, if I may say so, even from the context of this statement as the sentence it appears in starts “Mr Drabble [Mrs Menear’s barrister] accepts that if he is right there will be occasions…” (underlining added for emphasis).   I add that it is in this context too that Mr Justice Kennedy’s “interlinking” remarks (page 56 letters A-B) have to be read. Following on as they do from his comments about certification under the 1985 housing benefit scheme and his already stated support for Mrs Menear’s argument, it is plain in my judgment that he was referring to it being sensible for there to be interlinking where a person was on income support. Indeed it is instructive to note that he was here rejecting an argument from the local authority that there was no interlinking. His general remarks here cannot bear the weight of his meaning that there had to be interlinking in all cases.                         

28.	The binding ratio of ex parte Menear therefore has nothing to do with where a person is not on income support. 

29.	I can deal with Deputy Commissioner Ovey’s (as she then was) decision in CH/4014/200 very shortly. Again, instructively, it was a case where the claimant was on income support. The issue was whether the local authority could proceed to make its own living together as husband and wife decision or whether it was bound by the Secretary of State’s decision on this issue (see paragraph [9] of the decision). (For the reasons I have given in paragraphs 21 and 24 above), legally there could be no such thing as a ‘living together as husband and wife’ decision, but the sense of enquiry in CH/4014/2007 was clear).    The decision in CH/4014/2007, and its legal ratio, therefore has nothing to do with a situation where the person is not entitled to income support.  I therefore do no more than note in passing Deputy Commissioner Ovey’s remark at the end of paragraph 13 in her decision that “[t]he local authority only needs to consider that [living together as husband and wife] question in relation to a claimant who is not receiving income support”. It is, however, a remark that at the very least provides no support for the Council’s argument.

30.	Lastly, in terms of case-law, comes R(H)9/04.     Two aspects of this decision are important to mention at the outset. First, it was not concerned with income or capital (whether that of the claimant or any alleged partner).  It was concerned with whether the claimant was excluded from housing benefit under (what is now) regulation 9(1)(c)(i) of the HB Regs because his rental liability was to his “former partner and [was] in respect of a dwelling which he and his former partner occupied before they ceased to be partners”.  However, for the reasons developed below, this factual difference does not affect its materiality. Second, the local authority was relying on the fact that previously the claimant’s ex-wife had been awarded jobseeker’s allowance (“JSA”) for herself and the claimant as a couple. It argued that, following ex parte Meaner, this “on JSA” decision bound the local authority to decide that they had previously been a couple. It, again, therefore was a case relying on a person being “on IS/JSA”, and was not concerned with the situation where the housing benefit claimant is not entitled to income support.

31.	Nonetheless, a number of comments of Deputy Commissioner Paines QC (as he then was) in R(H)9/04 are worthy of note.  

32.	First, he rejects four square an argument (put in paragraph 20 of the decision) that the effect of ex parte Menear is that a local authority is bound by decisions of the Secretary of State for Work and Pension on any issues of fact that were common to a JSA/IS decision and a housing benefit decision. Second, he rejects an argument made to support the first argument based on the undesirability of different decision makers coming to different conclusions on the same issue.  Those two arguments are akin to the main arguments made by the Council here.  Moreover, as made in R(H)9/04 the argument were not limited to cases where a person was on income support, and so the rejection of those widely stated arguments in R(H)9/04 is  powerful authority against the arguments made by the Council here and adopted by Judge Jeffreys. 

33.	Third, it is plain from the discussion in paragraphs [24]-[28] of R(H)9/04 that it limits the effect of ex parte Menear to cases where the housing benefit claimant is on income  support.  

34.	Fourth, he holds explicitly that “[i]n the case of a claimant who is not receiving income support of JSA, those provisions [concerning, inter alia, the income and capital of the claimant and his her family – see para. [26] of the decision] give rise to matters on which a local authority has to reach a decision” (paragraph [27]).

35.	Fifth, he rejects the argument (made similarly here) that when Mr Justice Kennedy in ex parte Menear referred to ‘interlinking’ he was referring interlinking on any and all issues common to income support and housing benefit (se para. [p35]).

36.	Sixth Deputy Commissioner Paines points to the inevitable possibility of different decision makers arriving at different decisions on the same facts absent an express rule tying the housing benefit decision maker to the decision made by the Secretary of State (and, importantly for the argument made by the Council here, the findings of fact or determinations on fact that led to that entitlement decision). As the Deputy Commissioner put it in para. [40] of R(H)9/04:

“Miss Webb pointed to the undesirability of different decision-makers making different decisions on the same issue. She is right to say that that is not a desirable state of affairs. However, it is an inevitable possibility unless provision is made to make one decision-maker’s decision binding on the other decision-maker”

37.	All of these points it seems to me, to a greater or lesser degree, are part of the ratio of R(H)9/04 (that is, the parts of the decision necessary to its conclusion).  As a reported decision of a Commissioner I ought normally to follow it unless satisfied that it was wrongly decided. In fact, I am in complete agreement with the ratio in R(H)9/04 as it reasoning is virtually identical to mine.  I therefore have no hesitation in following it.  It provides a wholesale dismantling of the Council’s arguments.

38.	The Council’s attempt to distinguish R(H)9/04 on its facts has, I am afraid, no merit to it. Limiting the effect of ex parte Menear is central to R(H)9/04. But even if R(H)9/04 is distinguishable on its facts, that takes the Council nowhere as R(H)9/04 does not support the Council’s argument and I am thus left with my own analysis of the statutory scheme which doesn’t support the Council either.

39.	For all of these reasons, both the Council and the tribunal erred in law in holding that the Council was bound by what they saw as a living together as husband and wife “decision” made in the course of deciding that the appellant was not entitled to income support.  

40.	The Council was duty bound to carry out its own assessment of the appellant’s situation during the alleged overpayment period in order to work out whether there was in fact any overpayment or, if there was, its true net amount. That included it in determining whether the appellant had a “partner” and, if she did, what the couple’s combined income and capital was over the overpayment period. If, as apart of this exercise, it had decided that the appellant was part of a couple over the overpayment period but evidence had not been forthcoming from the appellant and/or Mr B about their income and capital over the overpayment period then the Council could have had regard to what the Tribunal of Commissioners said paragraph 79 in R(H)3/05. Indeed it would still be open to the Council to take all of these steps now.  

41.	In carrying out that investigative and fact-finding duty the Council is not bound by the income support decision or any of the evidence that led to it. But neither is it obliged to ignore that evidence.  Evidence that has led the Secretary of State to make his income support overpayment decision may be quite persuasive (or otherwise), as too may be the reason for the decision.  However the mere fact of the Secretary of State’s non-entitlement decision, without more (such as the reasons for it), is of little, if any, evidential worth. 

42.	The critical failure of the Council here, and the tribunal in following it, however, was its deciding that it was bound by the income support non-entitlement decision, and, in consequence, not turning its mind at all to establish the facts of the case.

The income support tribunal decision

43.	There was, however, a second error of law by the tribunal. This concerned its view that it was bound by the tribunal’s decision of 13.04.11 (page 39) on income support so that it could not “revisit the facts of whether or not the parties were living together from 21/7/03 – 12/7/10” and that it had “no discretion in this matter [the HB and CTB overpayments] now that a final decision has been made on [the appellant’s] Income Support for that period” (paragraphs 8 and 9 of the statement of reasons).

44.	This is simply plain wrong and a fundamental error of law on the part of the tribunal.  All that bound the tribunal was the decision of the income support tribunal and not the reasons or findings of fact that led the tribunal to that decision. This is clear from the terms of section 17 of the Social Security Act 1998 which provides:

“17.-(1) Subject to the provisions of this Chapter and to nay provisions made by or under Chapter 2 of Part 1 to the Tribunals, Courts and Enforcement Act 2007, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.
       (2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of –
	(a) further such decisions;
	(b) decisions made under the Child Support Act; and 
	(c) decision made under the Vaccine Damages Payments   
                  Act.

The opening words of section 17(2) show that findings of fact or determinations necessary to an entitlement decision will only be binding on subsequent decision makers if regulations so provide. There were at the material time on this appeal, and still are, no such regulations made in respect of living together as husband and wife determinations (or the findings of fact that led to such a determination).                                                                                     
                                                                          
45.	The decision Judge Thomas made on the first income support appeal was that the appellant was not entitled to income support with effect from 13 July 2003.  (Her second decision concerned whether the resulting overpayment of income support was recoverable from the appellant, which she found it was). It was that non-entitlement to income support decision that was binding on Judge Jeffreys, but no more than this.  Accordingly, it would not have been open to her to decide that the appellant was entitled to income support from 13 July 2003. However, the findings of fact or determination that, in part, led Judge Thomas to her non-entitlement decision – namely that the appellant and Mr B were living together as husband and wife/were married and living together in the same household – was not binding: that is clear from the terms of section17(2) of the Social Security Act 1998. In holding that this finding or determination was binding on her Judge Jeffreys erred in law.  Further this error of law was highly material as it led her to exclude giving any consideration to the very issue under appeal to her, namely whether the appellant had been overpaid HB and CTB.

46.	There is now quite a considerable body of case-law at Commissioner and Upper Tribunal level that has made good this point about the effect of section 17(2) of the Social Security Act 1998.
  
47.	In CIS/1330/2002 Mr Commissioner Jacobs, as he then was, addressed it in the context of income support and a recoverable overpayment decision that followed a non-entitlement decision for a past period.  The basis for each decision was that the claimant had too much capital to qualify for income support. The claimant appealed both decisions, though not at the same time.  The appeal tribunal dealing with the non-entitlement decision found that the claimant had excess capital and therefore upheld the Secretary of State’s decision. The appeal tribunal then dealing with the recoverable overpayment decision held that this excess capital finding of fact was binding on it and could not be re-opened. Following CIS/1263/2007, Commissioner Jacobs concluded the second tribunal had erred in law. The excess capital finding of fact was not binding on the second tribunal given the terms of section 17(2) of the Social Security Act 1998. Whether the claimant had excess capital was an issue of fact that the second tribunal had to investigate and make findings on in order to determine whether there was any overpayment, or at least a recoverable overpayment.

48.	The decision of Mr Commissioner Turnbull (as he then was) in CIS/2540/2012 is to similar effect, though he was concerned with two notional capital decisions separated by a period of time.  He decided that section 17(2) of the Social Security Act 1998 allowed to be relitigated on the second appeal whether the claimant had deprived herself of capital (per regulation 51(1) of the Income Support (General) Regulations 1987), notwithstanding that the first tribunal had examined the exact same issue.  The said section 17(2) precluded an issue estoppel arising.  

49.	Although Upper Tribunal Judge Wikeley’s analysis in SSWP –v- AM (IS) [2010] UKUT 428 AAC differs somewhat, I do not consider it takes away any of the force of the point that Judge Jeffrey’s was not bound on her HB/CTB overpayment appeal by any finding of fact made on the income support appeals.                                                                                

Conclusion
 
50.	It is for all these reasons that the tribunal’s decision dated 18.06.12 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess once it has properly considered all the relevant evidence.

 (Signed) S. M. Wright
Judge of the Upper Tribunal
                                                                                                          
Dated 3rd May 2013