Beltekian v Westminster City Council & Anor

LORD JUSTICE BROOKE: This appeal by Kevork Beltekian against a decision of the Social Security Commission, dated 24th November 2003, raises a question about the relationship between the regime for reviewing decisions about housing benefit under the Housing Benefit (General) Regulations 1987 ("the 1987 Regulations") and the regime introduced on 2nd July 2001 which is governed by regulations made under the Child Support, Pensions and Social Security Act 2000 ("the 2000 Act"). The regulations in question are the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 ("the Decisions and Appeals Regulations").

The history can be quite succinctly stated. On 7th February 2000 Westminster City Council ("the council") decided to refuse Mr Beltekian housing benefit. Under the 1987 Regulations he had a right to request an internal review of such a decision and then, if dissatisfied by the outcome of that review, to ask for the decision to be referred to a Housing Benefit Review Board ("HBRB"). Mr Beltekian had recourse to these remedies but to no avail, since on 21st September 2000 a HBRB confirmed the correctness of the council's decision. It considered that the arrangements under which Mr Beltekian had lived in the property in question comprised a tenancy contrived to take advantage of the housing benefits scheme. In the meantime Mr Beltekian had left the property in July 2000.

Section 86 of the 1987 Regulations contained a power whereby a HBRB could set aside a decision of an earlier board if certain statutory criteria were satisfied. On 20th December 2000 Mr Beltekian wrote a letter requesting that this power be invoked in the circumstances of his case. In July 2001 a new regime came into effect, and on 27th November 2001 a chairman of a Social Security Appeal Tribunal dismissed this application (see Regulation 4(b) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) (Transitional Savings) Regulations 2001 ("the Transitional Regulations") for the relevant transitional provisions).

One would have thought that would be the end of the matter, but each regulatory scheme made provision for what was described in the Decisions and Appeals Regulations as a supersession. Regulation 79(1) of the 1987 Regulations, which became spent on 2nd July 2001, provided that any determination or decision of a HBRB might be reviewed at any time by the appropriate authority if there had been any relevant change of circumstances since the determination or decision was made, or it was satisfied, and, in the case of a decision, satisfied by fresh evidence, that the determination or decision was made in ignorance of, or was based on, a mistake as to some material fact. In the language of those regulations, a "determination" meant a decision by a local authority, and a "decision" meant a decision by a HBRB.

On 11th March 2002 Mr Beltekian made a request that the council review the HBRB's decision, dated 21st September 2000, pursuant to Regulation 79(1), on the ground that it was based on a mistake as to a material fact. The council refused this request on the grounds that the 1987 Regulations had been repealed. Mr Beltekian thereupon applied for supersession of the board's decision, pursuant to Regulation 7 of the Decisions and Appeals Regulations, but on 8th April 2002 the council refused this request, too, on the grounds that supersession did not operate retrospectively (see Regulation 8).

Mr Beltekian again did not take "no" for an answer and on his appeal on 6th November 2002 a Social Security Appeal Tribunal considered, after hearing his account of what had happened, that he had made an application for a review of the board's decision which had not been determined prior to 2nd July 2001. It remitted the matter to the council for it to determine when the application had been made. Depending on the answer the council should consider whether revision or supersession was appropriate (see Regulation 2(1) of the Transitional Regulations for the relevant transitional provisions).

On 24th November 2003 a Social Security Commissioner upheld the council's appeal from that decision because the council's duty under Regulation 79(2) of the 1987 Regulations was to review its determination in the light of written representations, and it was not clear to him whether any such representations had been made before 2nd July 2001, the tribunal having made no finding of fact on the point. The Commissioner therefore directed a rehearing before a tribunal to determine whether in fact any written representations had been made for a review under Regulation 79(2).

Mr Beltekian sought permission to appeal to this court on a number of grounds, but the only ground on which Thomas LJ granted permission to appeal related to the question, as he defined it, as to whether there was power after 2nd July 2001 to review determinations made prior to that date. Although the point was never taken before the appeal tribunal or the Commissioner, Mr Watkinson, who appeared for Mr Beltekian both before Thomas LJ and on the hearing of this appeal, took the entirely new point that Regulation 4(2) of the Decisions and Appeals Regulations provides a route whereby the council can still revise its original decision in this matter on the grounds that it arose from an official error (see Regulation 4(1) for the meaning of "original decision"; and Regulation 1(2) and paragraph 1(2) of schedule 7 to the 2000 Act for the meaning of "relevant decision"). Mr Watkinson accepted that "a decision of a relevant authority on a claim for housing benefit" could not include a decision of a HBRB when reviewing the decision of a relevant authority.

The reason why Mr Watkinson elected to go down this route and to abandon the supersession route to relief was that he appreciated that although Regulation 7 of the Decisions and Appeals Regulations provided a route whereby a decision of a HBRB under the old statutory regime might, in theory, be superseded by a new decision of the council if satisfied that the HBRB's decision was based on a mistake as to some material fact, this remedy would have been of no value at all to his client, as the council appreciated in April 2002. This is because pursuant to Regulation 8(4) any superseding decision could not take effect until long after his client had left the premises so there was no longer any question of his receiving current housing benefit. (A relevant transitional provision is to be found in Regulation 4(4) of the Transitional Regulations).

The difficulty about Mr Watkinson's new argument is that even if his client's letter, dated 11th March 2002, could, by a fairly vivid stretch of the imagination, be interpreted as a request that the council should revise its original decision of 7th February 2000 on the grounds of official error, the council refused to entertain his request, and no appeal lies from that refusal to the appeal tribunal. The reason for this is that paragraph 6 of Schedule 7 to the 2000 Act creates the right of appeal to an appeal tribunal, and it applies to any relevant decision (whether as originally made or as revised under paragraph 3) of a relevant authority which (a) is made on a claim for, or an award of, housing benefit, or (b) does not fall within paragraph (a) but is of a prescribed description. The language of paragraph 6(a) refers to an original decision or a revised decision, and not to a refusal to revise.

In R(IS)15/04 a Tribunal of Commissioners considered the language of Regulation 18(3) of the Decisions and Appeals Regulations which prescribes the time within which an appeal is to be brought. It provides:

In that case the Tribunal accepted the submission that this regulation is referring only to an application for revision for which Regulation 4, itself, made express provision. Regulation 4(1)(a) does contemplate an application being made. Regulation 4(2) makes no mention of any application.

In my judgment this decision was clearly right and this is the end of Mr Watkinson's point. In these circumstances we do not have to decide the point which a Tribunal of Commissioners expressly left open in case numbers CIB/4751/2002, CDLA/4753/2002, CDLA/4934/2002, CDLA/5141/2002 when it referred to the earlier decision of a Tribunal of Commissioners in R(I)9/63 and said that it was at least arguable that an appellate decision simply replaced the original decision when it decided to confirm it and to dismiss the appeal against it. If this were the correct analysis, as to which I express no view, the council could not have revised any earlier decision of its own on the grounds of official error because its original decision in February 2000 would have been replaced by the HBRB decision in September 2000, which the council would have had no power to revise under Regulation 4(2).

I should add for the sake of completeness that Mr Watkinson was endeavouring to make bricks with a singular absence of straw, because neither his client's letter of March 2002, nor his further letter dated 24th July 2002, contained any reference at all to an official error vitiating the council's original decision. His complaint related to the way in which he said the council had misrepresented the facts of the case before the HBRB, which would of course have heard both sides before making its decision. This is an entirely different matter for which different remedies were provided by the relevant statutory scheme.

It was accepted by Mr Watkinson that if we found no merit in his new point we should not only dismiss the appeal but also set aside the Commissioner's decision to direct the rehearing before an appeal tribunal because his new point raised the only means by which his client could have any remedy of any value to him at all.

For these reasons I would dismiss the appeal and I would also quash the Commissioner's direction for a rehearing.

LORD JUSTICE CLARKE: I agree.

LORD JUSTICE NEUBERGER: I also agree.