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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Brown v Hambleton District Council  EWHC 1 (Admin) (15 January 2021)
Cite as:  EWHC 1 (Admin),  PTSR 751,  WLR(D) 45
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QUEEN'S BENCH DIVISION
B e f o r e :
SITTING AS JUDGE OF THE HIGH COURT
| DEREK JAMES BROWN
|- and –
|HAMBLETON DISTRICT COUNCIL
Mr Eric Owen and Piers Riley-Smith (instructed by Hambleton District Council Legal Department) for the Respondent
Hearing dates: 8th December 2020
Crown Copyright ©
His Honour Judge Gosnell :
This claim involves an appeal by the Appellant against the decision of the Valuation Tribunal (the independent body for Council Tax and Rating appeals) dated 20th January 2020. The Appellant had applied to the Respondent Local Authority for a council tax discount on the basis that his wife suffered from Severe Mental Impairment ( SMI ) in the form of Alzheimer's Disease. In order to qualify for the discount (single person's discount) , which in the Appellant's situation in a two-person household, would be 25%, the claimant must have certification from a medical practitioner stating the date when the patient first started to suffer from SMI and be entitled to a qualifying benefit, which in most cases is Attendance Allowance. The Respondent agreed that the Appellant was entitled to the Council Tax discount, but only from the date that Attendance Allowance was in payment. The Appellant thought that the payment should be backdated to the date when symptoms were first diagnosed and certified by the GP. He therefore appealed to the Valuation Tribunal who dismissed the appeal, giving reasons for doing so. He now appeals to this court. An appeal to this court may be made on a point of law only pursuant to paragraph 11, Schedule 11 Local Government Finance Act 1988.
The Appellant's wife Margaret was diagnosed with SMI from 1st February 2018 and a certificate was provided to this effect by her GP. Margaret became entitled to Attendance Allowance as a consequence of her condition and she first received payment on 29th November 2018. The Respondent backdated the Council Tax Discount to 29th November 2018, the date of her application for Attendance Allowance. The Appellant wrote to the Respondent asking them to backdate the discount until the date of certified diagnosis, being 1st February 2018. The Respondent refused stating that both certification of SMI and receipt of the qualifying benefit were required before the discount could apply. The Appellant appealed to the Valuation Tribunal on 2nd May 2019 and the Valuation Tribunal dismissed his appeal on 20th January 2010. The value of the backdated discount which the Appellant was seeking is £345.71. To be fair to him, he has made it clear that his aim in this litigation is to seek to establish the right for others in similar difficulties to make a successful claim backdated to the date of medical certification.
Council Tax is billed for domestic dwellings by Local Authorities pursuant to the regime set out in Local Government Finance Act 1992 ( "LGFA 1992"). The Respondent Council is responsible for the assessment and collection of Council Tax in the Appellant's local area and in the LGFA 1992 it is designated the "Billing Authority". The basic amounts payable are calculated in accordance with a formula set out in section of the LGFA 1992. The entitlement to discounts is provided by section 11 of the Act which states as follows:
(1)The amount of council tax payable in respect of any chargeable dwelling and any day shall be subject to a discount equal to the appropriate percentage of that amount if on that day—
(a)there is only one resident of the dwelling and he does not fall to be disregarded for the purposes of discount; or
(b)there are two or more residents of the dwelling and each of them except one falls to be disregarded for those purposes.
(2)Subject to sections 11A, 11B, 12, 12A and 12B below, the amount of council tax payable in respect of any chargeable dwelling and any day shall be subject to a discount equal to twice the appropriate percentage of that amount if on that day—
(a)there is no resident of the dwelling; or
(b)there are one or more residents of the dwelling and each of them falls to be disregarded for the purposes of discount.
(3)In this section . . . "the appropriate percentage" means 25 per cent. or, if the Secretary of State by order so provides in relation to the financial year in which the day falls, such other percentage as is specified in the order.
(4)No order under subsection (3) above shall be made unless a draft of the order has been laid before and approved by resolution of the House of Commons.
(5)Schedule 1 to this Act shall have effect for determining who shall be disregarded for the purposes of discount."
Sections 11A,11B,12,12A and 12B have referred to above have no relevance to this appeal.
"The severely mentally impaired
2 (1)A person shall be disregarded for the purposes of discount on a particular day if—
(a) on the day he is severely mentally impaired;
(b) as regards any period which includes the day he is stated in a certificate of a registered medical practitioner to have been or to be likely to be severely mentally impaired; and
(c) as regards the day he fulfils such conditions as may be prescribed by order made by the Secretary of State.
(2) For the purposes of this paragraph a person is severely mentally impaired if he has a severe impairment of intelligence and social functioning (however caused) which appears to be permanent.
(3) The Secretary of State may by order substitute another definition for the definition in sub-paragraph (2) above as for the time being effective for the purposes of this paragraph.
Paragraphs 2 (1) (b) ( c ) and 2 (3) are relevant to this appeal.
"The severely mentally impaired
3.—(1) The condition prescribed for the purposes of paragraph 2(1)(c) of Schedule 1 to the Act is that the person in question is entitled to one of the qualifying benefits listed in paragraph (2) below.
(2) The qualifying benefits for the purposes of paragraph (1) are—
(a) an invalidity pension under section 33, 40 or 41 of the Social Security Contributions and Benefits Act 1992(1);
(b) an attendance allowance under section 64 of that Act;…."
Other benefits are prescribed but are not relevant to this appeal.
Attendance Allowance is a benefit under Part III of the Social Security (Contributions and Benefits) Act 1992. It therefore falls within section 1 (1) of the Social Security Administration Act 1992 ( "The Administration Act") which states as follows:
1. "Entitlement to benefit dependent on claim
(1) Except in such cases as may be prescribed, and subject to the following provisions of this section and to section 3 below, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied—
(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or
(b) he is treated by virtue of such regulations as making a claim for it.
"prescribe" means prescribe by regulations;
"5. Regulations about claims for and payments of benefit
(1)Regulations may provide—
(a) for requiring a claim for a benefit to which this section applies to be made by such person, in such manner and within such time as may be prescribed;
(b) for treating such a claim made in such circumstances as may be prescribed as having been made at such date earlier or later than that at which it is made as may be prescribed;
(c) for permitting such a claim to be made, or treated as if made, for a period wholly or partly after the date on which it is made;
(d) for permitting an award on such a claim to be made for such a period subject to:
i) the condition that the requirements for entitlement are satisfied at a prescribed time after making the award, or
ii) other prescribed conditions."
"Date of claim
6.—(1)Subject to the following provisions of this regulation, the date on which a claim is made shall be–
(a) in the case of a claim which meets the requirements of regulation 4(1), the date on which it is received in an appropriate office;"
(Regulation 4(1) is the provision which requires the application to be made on a claim form)
6.(8) Subject to paragraphs (8A) and (8B) where–
(a)a request is received in an appropriate office for a claim form for disability living allowance or attendance allowance; and
(b)in response to the request a claim form for disability living allowance or attendance allowance is issued from an appropriate office; and
(c)within the time specified the claim form properly completed is received in an appropriate office,
the date on which the claim is made shall be the date on which the request was received in the appropriate office.
Paragraphs 8A and 8B do not apply to the facts of this appeal.
""entitled", in relation to any benefit, is to be construed in accordance with—
(a) the provisions specifically relating to that benefit;
(b)in the case of a benefit specified in section 20(1) above, section 21 above; and
(c) sections 1 to 3 and 68 of the Administration Act;
The specific conditions of entitlement to Attendance Allowance are set out in sections 64-67 of the Act and include the following provision:
"65 Period and rate of allowance
(1)Subject to the following provisions of this Act, the period for which a person is entitled to an attendance allowance shall be—
(a) a period throughout which he has satisfied or is likely to satisfy the day or the night attendance condition or both; and
(b) a period preceded immediately, or within such period as may be prescribed, by one of not less than 6 months throughout which he satisfied, or is likely to satisfy, one or both of those conditions.
I have set out paragraph 1 of the Administration Act in paragraph 6 above which provides that entitlement to benefits depends on making a claim.
The hearing took place on 20th January 2020 where the Appellant represented himself and the Respondent was represented by Ms F Crisp. Dr Johnson the Senior Member of the Valuation Tribunal who conducted the appeal set out the relevant legislative provisions and the factual basis of the claim. He correctly identified the two necessary conditions to make a successful claim for Council Tax Discount:
"20. I found that the test in law for a person to be disregarded in considering entitlement to a council tax discount was clear. For such a disregard on the grounds of being severely mentally impaired the person must, for each day the disregard is to apply, meet two conditions –
(a) that they are certified as severely mentally impaired; and
(b) that they are entitled to a qualifying benefit."
" 23. I considered that there is a significant and substantial difference between being entitled to a benefit and meeting the conditions to qualify for a benefit. Section 1(1) of the Social Security Administration Act 1992 stipulates that, in addition to meeting the conditions for a benefit, a person must have made the claim for the benefit, or be treated as having made such a claim, in accordance with the relevant regulations of the benefit to have an entitlement to it. Parliament clearly intended to limit a person's ability to retrospectively claim entitlement to a benefit. The use of the phrase "entitled to" in Article 3 of the Discount Disregards Order must, as a matter of statutory construction, take account of the condition of entitlement to a benefit at section 1(1) of the Social Security Administration Act 1992. I found there to be no justifiable reason for interpreting the phrase "entitled to" in a way that disregards it.
24. In Mrs Brown's case, the DWP has awarded Mrs Brown an attendance allowance from 29 November 2018 following the making of a claim in November 2018. There is no suggestion that the claim for attendance allowance was made earlier or that any such claim would be treated as made from an earlier date. Therefore, whilst she may have met the conditions to qualify for attendance allowance from the date of her diagnosis, Mrs Brown was not entitled to such an attendance allowance earlier because she failed to meet the condition imposed by section 1(1) of the Social Security Administration Act 1992."
The Appellant submits that the decision of the Valuation Tribunal was wrong in law. He alludes to the difficulties experienced by relatives claiming Attendance Allowance for dementia sufferers which requires a 31-page form and supporting medical evidence. The form evidently stipulates that it can only be applied for six months after diagnosis and many relatives find the whole process too burdensome.
The Respondent submits that the Valuation Tribunal reached the right decision for the right reasons. The starting point is s 11 LGFA 1992 [ paragraph 3 above] which then leads to Schedule 1 of the same act [ paragraph 4 above]. The additional conditions prescribed by order are contained in Article 3 of the Council Tax Disregard Order [ paragraph 5 above] – the entitlement to a qualifying benefit, namely Attendance Allowance. Both statutory conditions were met as from 29th November 2018; Mrs Brown had been certified as suffering from severe mental impairment and she was entitled to Attendance Allowance , a qualifying benefit. This does not mean that she is entitled to backdated Council Tax discount from the date she was certified as so suffering by her GP it claims.
"This, I am told by Mr Forsdick, was intended to statutorily reverse a decision of the House of Lords in Insurance Officer v McCaffrey  1 WLR 1353 in which the House of Lords concluded that a person was entitled to benefit if he met the conditions of entitlement , even though he had not made a claim for benefit, which of course would have accorded with the submission which Mr Davies has been making to me before, which, in those circumstances, has been expressly abjured by the legislature."
" The legislative history illustrates clearly why section 1 of the 1992 Administration Act , and more particularly its predecessor section 17 of the Social Security Act 1985 was enacted , namely to reverse the effect of the decision in McCaffrey and make clear the fundamental position that entitlement to a benefit is ordinarily dependent on a claim being made for it".
The factual context of this appeal is essentially agreed. Mrs Brown was certified by her GP as being Severe Mentally Impaired on 1st February 2018. The Appellant made an application for Attendance Allowance on 29th November 2018 which was granted. No application was made to backdate that allowance. The Appellant made an application for his wife to be disregarded for the purposes of council tax and a discount claimed on 20th February 2019. This was granted backdated to 29th November 2018 the date when Attendance Allowance was approved for payment. It is the period from 1st February to 29th November 2018 that is in dispute.
(4)A person shall not be entitled to an attendance allowance for any period preceding the date on which he makes or is treated as making a claim for it.
(5)Notwithstanding anything in subsection (4) above, provision may be made by regulations for a person to be entitled to an attendance allowance for a period preceding the date on which he makes or is treated as making a claim for it if such an allowance has previously been paid to or in respect of him.
(6)Except in so far as regulations otherwise provide and subject to section 66(1) below—
(a) a claim for an attendance allowance may be made during the period of 6 months immediately preceding the period for which the person to whom the claim relates is entitled to the allowance; and
(b) an award may be made in pursuance of a claim so made, subject to the condition that, throughout that period of 6 months, that person satisfies—
(i)both the day and the night attendance conditions, or
(ii)if the award is at the lower rate, one of those conditions.