Housing Benefit non-commercial/contrived tenanacy tribunal jurisdiction

I have four consecutive HB appeals for the same claimant to be heard at a tribunal hearing next week (ie. each time his claim was refused he submitted a further one and lodged an appeal). The decision notices in each case rely upon the tenancy not being on a commercial basis however from the second appeal submission onwards the LA have also raised the issue, in the appeal papers, of the tenancy being on a contrived basis. However, all of the decision letters to my client have given the sole reason for refusing the claims on the basis of non-commerciality. Is the tribunal therefore permitted to determine the cases only on the grounds of non-commerciality? Does the tribunal have jurisdiction to make a decision that the tenancy is contrived when the client has had no decision notices stating that reason? My instinct says the LA cannot rely upon a contrived tenancy argument only at the appeal stage but I stand to be corrected.

I don’t think there is any problem with this approach.  I often write submissions for local authorities in which I propose alternatives that were not referred to in the first instance decision.  The Tribunal is stepping into the Council’s shoes and is able to make any decision the Council could have made - same as or different from the original, advantageous or disadvantageous.  The important thing is that the claimant has a fair hearing and knows well in advance all of the issues that the Council relies on.  Ideally they would have expressed their original decision as a series of alternatives, but it is perfectly acceptable for them to raise new issues once it gets to appeal.  Even if they didn’t, the Tribunal could say “it seems to me that the facts raise the additional question of contrivance, I therefore direct the parties to make further submissions on that point”.

There have been a few UT/Commissioners’ decisions down the years where the following has happened:

- the Tribunal based its decision on something that was raised neither by the original decision nor by the parties’ submissions.  When the decision is issued, the new matter is a bolt from the blue as far as the parties are concerned.  The claimant did not get a fair hearing on the new matter and the decision is set aide and remitted to a new Tribunal
- after the claimant has won an appeal in which the Council relied on only one argument, the Council suddenly realises that an alternative argument might have stood a better chance of success.  They seek permission to appeal to the UT on the rather audacious grounds that the alternative matter should have been obvious to the Tribunal and missing it was an error of law, even though they missed it themselves.  This rarely gets any sympathy but there has been the odd case where the Council was allowed another bite of the cherry.

To add - or perhaps say in slightly different terms what HB Anorak has said….

A tribunal is able to allow or dismiss an appeal on a basis that is different to the arguments put by the parties. What is not permissible is for the parties to introduce entirely new evidence which fundamentally changes the nature of the case at or very shortly before the hearing and for the tribunal to then make its decision on the basis of that evidence without affording the losing party proper opportunity to address the new case - in many cases this will require an adjournment to allow sufficient opportunity to prepare.

I’ve had reg. 9 case where the LA’s position was that the tenant was excluded on the basis of both non-commerciality - but where that problem could potentially be overcome. However, at the same time, the evidence pointed to a pretty clear taking advantage of the housing benefit scheme problem - tenant (mum) had purchased her council flat under the right to buy scheme with finance from daughter, but had then sold to daughter for a nominal sum the moment that the 5 years were up (thus avoiding the previous ownership provision in reg. 9 and having to repay the right to buy discount)  and was now the tenant of her daughter. The rent charged was a ‘commercial’ one in the sense that it was the market rent/going rate - but this was four times what the council rent would have been and netted daughter/landlord more than £2000 a month profit after her mortgage repayments. The abuse/taking advantage case against the client was apparent from the evidence even though not raised by the LA - which meant that the tribunal was bound to deal with it.

So the real question here for the rep is ‘can the contrivance case be answered?’

Another way of making the same point I suppose but the decision here is that your client is not entitled to benefit. That decision is underpinned by a determination on non-commerciality. But your appeal is against the decision - not the determination. So if the LA can show it got the decision right (albeit by the wrong route), then why shouldn’t it succeed?

(Subject of course to being given a fair chance to respond to the point - which doesn’t sound like an issue here)