CA-2023-002256 - [2025] EWCA Civ 985

The Appellant has lived in her current home since 1984 and has been in receipt of HB for some considerable time. In September 2014 she submitted a change of circumstances form, in which she declared that she was the sole occupier of the property and that her son had left the property two days before. Her son has been in remunerative employment throughout such that the effect of her declaration was that the Appellant became entitled to a higher rate of HB and increased Council Tax support once her son had left.

Some three years later, in December 2017, Lambeth opened an investigation into the Appellant’s entitlement to the Council Tax single person’s discount. The appellant was visited by representatives of Lambeth at her home. In March 2018 she was interviewed under caution. During that interview she repeated that her son had moved out of the property in 2014. Lambeth then proceeded to obtain extensive documentary evidence which consistently recorded the son’s address as being at the Appellant’s property. On the basis of that documentary evidence Lambeth took the decision that was notified to the Appellant on 11 October 2018.

The Appellant has always been of the fixed view that Lambeth’s actions in investigating her and making its decision on 11 October 2018 were motivated by anger and a desire to retaliate after she had obtained a Debt Relief Order in February 2018. As a result, Lambeth had written to the Appellant in March 2018 stating that her outstanding balance of £1,905.93 Council Tax relating to the financial years 1999/2000, 2012/2013, 2013/2014 and 2014/2015 was covered by the Order and did not need to be paid. The Appellant had instituted the process that led to the writing off of this outstanding balance by consulting a debt counselling charity in and from August 2017. There is no rational basis for the Appellant’s conviction about Lambeth’s motivation but, as set out below, it is accepted by Lambeth to be genuine; and it looms large in the procedural history.

The Appellant appealed Lambeth’s decision to the FtT. At some point she consulted another charitable source of advice (“Centre 70”) who came on the record as her representative. They did not, however, attend any hearing or send written representations and a subsequent review of their file by the Appellant’s current solicitors suggests that they took no effective steps on her behalf.

During a hearing before the FtT on 10 March 2020 the Appellant told the Tribunal that she was in contact with her son and that he was living in Enfield. In the light of that information the FtT Judge adjourned the hearing and gave directions that were set out in a Directions Notice including:

“4.

As explained, the hearing has now been adjourned because you have stated that your son … lives in Enfield and that you are in communication with him. At the time of the interview under caution, you were unable to state exactly where he was living.

5.

Within 28 days of the date of this Directions Notice, you are required to provide copies of your son's council tax bills, for his accommodation in Enfield, covering the period from September 2014 (the date that he left your property) to October 2018 (the date of the decision under appeal). Please send only photocopies and bring the original council tax bills with you to the next appeal hearing.

6.

If there are no council tax bills to show your son's residence in Enfield, the Tribunal would be greatly assisted by hearing your son giving oral evidence as the overpayment decision relates to him. You are therefore encouraged to attend the appeal hearing with him on the next occasion. Even if you are able to send copies of his council tax bills, his oral evidence would still be of assistance.”

Subsequently, on 29 July 2020 another FtT Judge directed the Appellant to produce evidence by 20 August 2020 after which the appeal was to be relisted.

On or about 20 August 2020 the Appellant sent a sheaf of handwritten letters, said to have been written for her by her mother. By then it is apparent that the appeal had been listed to be heard on 26 August 2020. In the sheaf of letters, the Appellant said that she wished to continue with her appeal without attending. The letters signed by the Appellant asserted the connection between her taking steps to obtain debt relief and Lambeth’s first visit about her HB; and she repeated that her son had moved out in 2014. Two of the letters were signed by her son. One gave an address in Streatham Hill and said that he had lived in a room in that address from 2014 to 2017. The second gave an address in Enfield and said that he had lived in a room in that address since 2018 and still lived there. It said that when he moved out he had not told his mother where he was moving to.

As foreshadowed in her recent letters, the Appellant did not attend the hearing on 26 August 2020. The FtT adjourned the hearing because the Appellant could not be contacted; and it ordered the Appellant to provide electoral register forms evidencing her son’s residence in Enfield at the relevant times. The directions stated that if she did not take part in the next hearing and did not provide the requested information, the tribunal would determine the appeal on the basis of the information available to it.

The Appellant did not produce any evidence of the sort contemplated by the 10 March or 26 August 2020 directions. Nor, when the appeal came on for hearing by way of a telephone hearing on 28 January 2021, did her son attend the hearing. The Appellant had produced the two handwritten letters, signed by her son and provided in August 2020. There is also reference to a handwritten letter from the Appellant’s mother, which now cannot be identified. Otherwise, all that the Appellant had supplied was a series of hand-written letters dated between 20 November 2020 and 18 January 2021 which focused repetitively and (in a lay sense) obsessively on the investigation (including the visit of Lambeth’s investigators to her home) and the motivation for the investigation being her obtaining the writing off of her Council Tax arrears. These letters have been described by her Solicitors (in a description adopted by Dr Kumar) as seeming “scrambled, ranting and exhibited a paranoid belief as to why the [Lambeth] Fraud team had taken action against her”. So far as is relevant, she continued to assert that her son had left the property in 2014 and that he had simply failed to notify his change of address to the various people who had generated the documentary evidence on which Lambeth relied to support their decision.

The FtT dismissed the Appellant’s appeal. The decision notice and the subsequent Statement of Reasons addressed the absence of any documentary evidence and drew adverse inferences from the failure to provide independent evidence. The core of the FtT’s reasoning as set out in the Statement of Reasons was as follows:

“27.

I find that a substantial amount of evidence has been submitted by the Respondent, which links [the Appellant’s] son to the property. By way of rebuttal, [the Appellant] submits that her son has merely continued to use her address for correspondence. Whilst it may be that on leaving the family home adult children may continue to use their parents' address, what is evident in the appeal before me is that correspondence from [the son’s] employers and bank statements are linked to the property and this is the only address that they have. I find that it is not credible that such important correspondence would go to the property if [the son] was not living there and if, as initially suggested, [the] son's whereabouts were not known to her. I find that employer correspondence is of such importance that it would be reasonable to conclude that the employer should have known where [the son] was residing.

28.

I find that [the Appellant] has been provided with numerous opportunities to rebut the evidence that has been relied on by the Respondent, by producing evidence linking her son to another address. The hearing was adjourned and clear instructions were given as to the type of evidence that would assist in rebutting the Respondent's evidence. All that has been provided by [the son] is a handwritten letter in which he says that he did not tell [the Appellant] where he was living because he had "come of age". I find that such a position does not sit well with the seriousness of the situation that [the Appellant] has now found herself in.

29.

I find that it would have been a relatively straightforward and simple matter for [the Appellant] to be able to show that her son resided in Streatham during the overpayment period and that he now resides in Enfield, by the production of evidence from independent/official sources. Such evidence could have taken the form of electoral register forms, in the absence of council tax bills (if he was renting a property in Streatham or Enfield), tenancy agreements or other bills addressed to her son in Streatham or Enfield.

30.

In the absence of any satisfactory evidence to the contrary, I find that the evidence before me strongly suggests that [the Appellant’s] son was still residing in the property during the period of the overpayment. I am therefore satisfied that an overpayment has arisen.” (emphasis added)

The reasoning in the Statement of Reasons was consistent with the earlier Decision Notice. [17] and [18] of the Decision Notice was in similar but not identical terms to [28] and [29] of the Statement of Reasons as follows:

“17.

Prior to today's hearing, by way of further evidence, [the Appellant] provided two handwritten letters prepared by her and signed by her son, stating that her son lived in Streatham between 2014 and 2017 and that he lived in Enfield from 2018. [The Appellant] has not however provided any independent evidence from official sources, apart from the handwritten letters from her mother and her son.

18.

I find that it would be a relatively straightforward and simple matter for [the Appellant] to be able to show that her son resided in Streatham during the overpayment period and that he now resides in Enfield. Such evidence could take the form of electoral register forms (in the absence of council tax bills), tenancy agreements or other bills addressed to her son in Streatham or Enfield. The fact that [The Appellant’s] son is not listed on the electoral register at her address is not of sufficient cogency to displace the other evidence that shows that he was linked to her address during the period covered by the overpayment.” (emphasis added)

The decision of the FtT put the Appellant’s rent account with Lambeth substantially in arrears. When payment of the arrears was not forthcoming, Lambeth took steps to institute possession proceedings. Faced with Lambeth’s Notice of Seeking Possession, the Appellant instructed Messrs G T Stewart, Solicitors, to act on her behalf in those proceedings. As recorded in a detailed letter to HMCTS dated 13 October 2021, which made a late application to set aside the FtT’s decision of 28 January 2020, the Solicitors had contacted the Appellant’s son, who provided a two-fold explanation for why he had not changed the details of his address on the documentation which had been relied upon by Lambeth. His explanation was that his accommodation was not secure and he did not want to have to change his address every time he moved on; and that he wanted to obtain credit and would not have been able to do so if he gave an address where he had only been living for a short while. The solicitors had also contacted the people with whom it was said that the son had lived, first in Streatham and latterly in Enfield, both of whom were said to be prepared to give evidence of his living with them; and they had contacted neighbours of the Appellant who had provided witness statements corroborating the Appellant’s evidence that her son moved out in 2014. Having reviewed Centre 70’s file, the Solicitors blamed Centre 70 for not having taken the necessary steps to protect the Appellant’s position.

We have in the appeal bundles four witness statements that were evidently taken by the Solicitors in September 2021 from the Appellant, her son, and two neighbours of the Appellant. The son’s witness statement exhibited handwritten letters from the people in whose homes he says he had lived, both of whom were said by the Solicitors to be prepared to give evidence.

In addition, the Solicitors’ letter raised for the first time the question of capacity. The solicitors were concerned that the Appellant was confused, unable to recall events, and unable to provide detail about what had happened at the January 2021 hearing. [I interpose that it is clear from the documentation in this appeal that some of the information that the Appellant had provided to the solicitors can be seen to be materially inaccurate.] In the light of the solicitors’ concern that the Appellant might lack capacity, they told HMCTS that they were in the process of having the Appellant assessed by a consultant psychiatrist. On 8 November 2021 the Solicitors wrote to Dr Anil Kumar, Consultant Psychiatrist, instructing him to “assess our client and then prepare a report in relation to whether she is disabled and as to whether she lacks capacity to be a party to these proceedings.”

Dr Kumar produced his report on 29 November 2021 and a certificate as to capacity to conduct proceedings the following day. I refer to his evidence in detail below: see [26]. Armed with his report and, it appears, the witness statements to which I have referred, the Solicitors wrote again to the Tribunal on 13 December 2021 requesting that the decision of January 2021 be set aside.

On 11 February 2022, the FtT (District Tribunal Judge V A King) refused the application to set aside the decision of January 2021. Amongst the reasons given were that (a) the circumstances did not fall within Rule 37(2) of the Tribunal Procedure Rules as the documents relied on had not been in existence at the time of the original decision; (b) the evidence from Dr Kumar was based on an examination that took place many months after the decision on 28 January 2021; (c) the Judge had listened to a tape recording of the January 2021 hearing and the Appellant appeared able to answer questions and engage with the issues in the appeal; and (d) (at [8]) the Appellant had not produced “any evidence likely to lead to a different outcome in the Housing Benefit appeal”. The Judge said that they had not found any procedural irregularity in the proceedings but, if they had, they would still have refused to set aside because of the state of the evidence produced by the Appellant. I interpose at this point that Lambeth placed great weight on (d) above, but ultimately accepted that it neither said nor bound us to act on the basis that the evidence produced by the Appellant could not lead to a different outcome in the HB appeal. I consider that acceptance by Lambeth to have been both correct and inevitable.

In May 2022 (by which time the Appellant had the benefit of representation by Mr Rutledge who appears for her with Mr Burton KC before us) the Appellant made a late application for permission to appeal on the basis that the FtT in January 2021 had erred in holding that it would have been a relatively straightforward and simple matter for the Appellant to show that her son did not reside at her property. This was said to be based on a mistake as to a relevant fact, namely that the Appellant had the capacity to know what evidence would support her case. After refusal of permission by the FtT, the UT (UTJ Church) gave permission to appeal on 1 December 2022. In setting out his reasons why he was granting permission to appeal, UTJ Church said that he was persuaded that the decision of the FtT was based on a material mistake of fact and that:

“I am persuaded that it is arguable that the [FtT] was mistaken as to your capacity to conduct your appeal, and that if it was so mistaken such mistake may have been material in the sense that, had it not been made, the [FtT’s] conduct of the proceedings, and the ultimate outcome of the appeal, might have been different.”

That permission led to the hearing and dismissal by the UT of the appeal, on the papers, on 14 June 2023, which is the subject of the present proposed appeal. The UT refused permission to appeal. Hence this hearing.