Hello,

I am currently putting together an appeal submission for a Local Authority on a Housing Benefit matter, (the benefit claimant is not entitled to HB as she is the former owner of the property she now rents, HB reg 7 (1) (h) applies - Also no legal responsibility to pay rent, so will fall foul of HB reg 6). The LA has decided that she did not need to sell the property to maintain occupancy of it, and is therefore not entitled to HB). This would normally be a 'straightforward' submission.

I have been asking questions about 'why' the benefit claimant felt she had to sell her home, to remain within it, (if the reason is valid, I can overturn at least one of the decisions preventing the award of HB). However, her reasons for selling are tied up in mental health issues, and a previous suicide attempt, and my questions have caused her to relive those issues. Now that I know this, I have stopped asking those questions, but having the answers, was the only way I could make the appeal successful, as she had no mortgage arrears etc. and sold the property for many £1,000's less than it's market value.

However, she has been telephoning me these past few weeks, becoming increasingly emotionally distressed, at the prospect of being refused HB, and last week led me to beleive that she would rather end her own life rather than attend an appeal hearing. Services confirmed that the claimant is known to be a very real suicide risk, (though not sufficient to warrant a section under the MHA).

The benefit claimant is being 'reped' by a well-known national advice agency, but her rep does not seem to have discussed paper v. oral hearings etc. nor other ways forward. She has little/no family support, (her daughter/landlady does not want 'rent' but it appears that she just wants to throw the claimant out, to release the capital held in her mothers home, (property bought for £60,000 from the claimant but is actually worth £200,000+). But the claimant wants her appeal to progress, (but only because she does not want to withdraw it, and agree with the LA's decisions by default).

I will be supporting the appeal in the sense that HB reg 7 (1) (h) might not be fair to this appellant, (referral to TAS will be on Article 8, and Protocol 1 of the first protocol of the HRA), and asking for a much longer hearing, as the appellant will be emotionally distressed the hearing - I will also be referring with Article 6 considerations too). However, HB reg 7 (1) (h) is binding on the LA in this case. However, I see my referral has having the following consequences:

a. If I request a paper hearing, and the claimant does not request an oral hearing, she will just receive the decision notice through her letterbox. She will have no support on the morning it arrives, and might not be prepared if the decision is to uphold the LA's decision. I am therefore afraid as to what she might do.

b. If I request an oral hearing, the benefit claimant has already told me that she will become 'very depressed' on the way home from the hearing, and would see that as 'the end'. Again, I am affraid of what she means by this. S/services are not very good, and the LA concerned has not long come off 'special measures' and is therefore not as supportive as it might/could be.

I therefore this morning discussed the faint possibility of a "Domiciliary Hearing" on this matter. The claimant felt that if that could be arranged, it would be better for her, as it would make her feel comfortable, and she would have at least neighbours nearby.

I have tried to discuss with TAS this morning, but the person I need to speak to is off until Wednesday. I know that domiciliary hearings can be arranged by TAS, but I think they are rare, and I have not known one in a HB case, and this claimant although a pensioner, (61) has no mobility issues etc. My questions are therefore:

1. Can anyone please advise if there are any Commissioner's decisions on whether an appellant has the right to a domiciliary hearing, or any other connected issues, (allowing appeal to proceed with known MH issues etc.).

2. Suggestions (other than make the appellant's appeal successful), on any other way forward would also be greatly appreciated!

Many Thanks...

Leaving aside the HB reg issues, in terms of domiciliary caselaw, the following is a summary of CIB/2751/02 taken from Disability Alliance's useful PCA-Using the Law case law pack (the decision itself does not seem to be available on line):

'CIB/2751/02 – Decision considered with CS/3202/02. Where a domiciliary hearing is requested the tribunal is under a duty under Article 6(1) of the Human Rights Act 1998 (the right to a fair hearing) to fully consider this. This means the issue should be discussed with the claimant or his or her representative. Where such a hearing is refused it implies that other solutions, such as adjournments for further medical evidence, should be sought. Also raises the question of what constitutes a domiciliary hearing (should it always be in the claimant’s home.'

However, in the first instance, a claimant or their representative would normally need to send a request for a domiciliary hearing to the Appeals Service, ideally with specifically targeted medical evidence ,to explain why the cliamant cannot attend an oral hearing at an Appeal Service venue. A tribunal chair would then be asked to consider the request.

However, I am a bit unclear from your posting as to what your actual role is here.

In your posting you say that the claimant has a representative, and that you are putting together an appeal submission for the Local Authority?

If you are advising and acting for the Local Authority, why are you not advising them that they should they uphold the appeal?

Again, would it not be more appropriate for you to suggest to the claimant she ask her representative to advise/help with a domicilary hearing request?

Is there not a conflict of interest with you advising the claimant in this way?

Ken, thanks for the reply...

You raise an interesting issue, but no, I do not consider that I have a conflict because-

The appellant's representative should be resolving this, but for whatever reason, (lack of experience/knowledge/time etc), they are not. However, on this appeal, the LA have 'appointed' me to prepare the submission, and present the case at TAS on behalf of the LA. I therefore have a duty to the Tribunal to highlight all and any issues that might affect the decision reached by the Tribunal... "As decision-maker, the local authority is under a statutory duty to ensure that benefit is paid according to law. As a party before an appeal tribunal, its function is not to defend its decision, but to assist the tribunal in ensuring that the legislation is correctly applied”, (Commissioner Jacobs, at paragraph 32 of CH/1229/2002).

If the appellant's representative will not 'rep' I have little choice but to seek to protect the appellant's right to a 'fair' hearing. I accept and appreciate that you might not have heard many other 'appeals and presenting officers' seek to advance claimant's rights in this way, and perhaps you might never have heard this from Local authority's Housing Benefit section before? However, I do try and uphold the rights of the appellant, even if other 'appeals and presenting officers do otherwise (esp. in HB, where the experience is less than in other benefits). But perhaps that's what keeps me in employment, and with a success rate in my submissions to TAS?

In light of the claimant's circumstances, were I to just refer to TAS, and the claimant did then attempt suicide, I could not morally hold my head up! Any 'excuse' of "well, I had to refer" without first considering the available options would cause me to seriously think of needing to seek another profession. Indeed, such an action (inaction) might cause the LA to be in breach of S. 6 and Article 8 of the HRA, which again, I can not allow to happen 'in the cases I am involved with'.

As for making the appeal successful, I would love to! The LA concerned has authorised me to make decisions about appeals, and I can make this appeal successful. However, I have to reference my decision to law. I do not consider the law allows me to make this appeal successful, even though I support the appellant's appeal, because it is unfair, (unfair that her daughter is not really charging her rent, unfair that she sold her property to her daughter for substantially less than it was worth, unfair that her daughter, it appears, now just wants the cash from the sale of the property, (the daughter does not even want 'rent'. The benefit claimant wants HB, to try and 'appease' the daughter). Though this is all unfair, I can not award HB on that basis... so I hope I have cleared that up, and sorry if my first post caused confusion...

Thanks for the link, I will now follow it.... any other thoughts advice would be welcome as my role is, I think, to uphold what I consider the law says, whilst being as fair to the appellant as possible, and without losing sight of the respect that the appellant deserves, regardless of the merits of their appeal... (here endith the sermon on my morals and values)...

Cheers matie...

Found CIB/2751/02 with the CS/3202 decision, as a download from OSSCSC. I am now about to settle down with a cup of hot chocolate, for a nice read....

Thanks again....