[2024] UKUT 222 (AAC)

How the tribunal dealt with Barnet’s other arguments

The tribunal did not address any of Barnet’s alternative arguments in its decision notice dated 16 January 2023. At paragraphs 39 to 42 of its Statement of Reasons, the tribunal referred to the alternative grounds about Prest and notional capital under regulation 49(1) that Barnet had set out in its Response to the Appeal. The tribunal explained at paragraph 43 of its Statement of Reasons that it had not considered those alternative grounds in detail; it had refused the appeal under regulation 43 and 49(5) and it did not need to consider the alternative grounds.

At paragraphs 44 to 45 of its Statement of Reasons, the tribunal stated it agreed with Barnet’s position that the public purse cannot be used as a vehicle for a claimant to subside their living costs in order to build a portfolio of profitable companies with profit in those companies substantially in excess of £16,000. The tribunal also stated (ZA and JA’s) earned income is kept artificially low in order to ensure eligibility to housing benefit. Finally, the tribunal stated that the profit from ZA’s companies is available to her to pay the rent liability and other living costs and therefore should be treated as capital.

Immediately after making these statements, the tribunal wrote: “For these reasons, the appeal is refused, the decision made by the local authority on 17/02/2022 is confirmed” (paragraph 46).

Barnet’s argument about using the public purse to subsidise living costs and build profitable companies arguably address the notional capital ground in regulation 49(1). Barnet’s argument about earned income being kept artificially low was likely either relevant to the notional capital ground provided in regulation 49(1) or to the notional income ground in regulation 42(9). However, the tribunal expressly stated it did not consider those grounds. Therefore, neither of these matters were relevant to the decision the tribunal made.

I am therefore satisfied the tribunal made a material error of law by placing weight on immaterial matters in the decision it made.