Ghassemian v Borough of Kensington & Chelsea

For enforcement under the Civil Procedure Rules 1998, rule 70.5, a County Court may determine whether a qualifying tribunal or authority decision exists and remains operative. It may do so without deciding the underlying housing-benefit entitlement or investigating the merits. Under Schedule 7 paragraph 6(9) to the Child Support Pensions and Social Security Act 2000, an appeal tribunal need not decide an issue not raised by the appeal. An issue mentioned initially but not pursued at the hearing may be treated as withdrawn by conduct. The tribunal’s inquisitorial function does not require investigation of unraised matters. A failure to state expressly that an issue was not decided is ordinarily addressed by appeal and does not require remittal.

The appellant had received housing benefit. The respondent authority later decided that he had not been entitled to it and that the resulting overpayment was recoverable. On appeal, the tribunal decided the entitlement issue but did not expressly determine recoverability. The authority then obtained a County Court enforcement order under section 75(7) of the Social Security Administration Act 1992 and rule 70.5 of the Civil Procedure Rules 1998. A District Judge and HHJ Behar refused to set the order aside. The central issue before the Court of Appeal was whether the County Court could determine that the authority’s decision remained operative, and whether the recoverability issue had to be returned to the tribunal.

Arden LJ delivered the judgment, with Moses LJ and Sullivan LJ agreeing. The Court of Appeal refused the application to raise new grounds of appeal. The final order was: application refused.

1. Enforcement jurisdiction. Under section 75 and section 75(7) of the Social Security Administration Act 1992, together with rule 70.5 of the Civil Procedure Rules 1998, the County Court had to decide whether the statutory gateway to enforcement existed. That included deciding whether there was a qualifying decision and whether the authority’s decision still stood. This was a jurisdictional inquiry, not an investigation of the merits of the housing-benefit decisions. Waltham Forest BC v Roberts [2005] 37 Housing Law Reports 21 did not establish a wider restriction.
2. Unpursued issue. The authority had decided both entitlement and recoverability. Under Schedule 7 paragraph 6(9) to the Child Support Pensions and Social Security Act 2000, the tribunal was not required to determine an issue that was not raised in the appeal. Although recoverability had been mentioned in the original notice, there was no evidence that it was pursued at the oral hearing. It could therefore be treated as withdrawn by conduct.
3. Inquisitorial jurisdiction and staged recovery. The tribunal’s inquisitorial function did not require it to investigate facts or issues that had not been placed before it. The two-stage recovery analysis described in R(H) Decision 3 of 2004 did not prevent enforcement because that decision did not concern an appeal in which recoverability had ceased to be pursued.
4. Insufficiently explicit decision. It might have been proper practice for the tribunal to record expressly what it had and had not decided. That omission did not justify treating the decision as leaving recoverability open. Any error in failing to determine a properly raised issue had to be addressed through the statutory appeal route, not by setting aside enforcement or remitting the matter.

1. Court of Appeal (Civil Division): on 8 June 2009, refused the application to raise new grounds of appeal and ordered that the application be refused: [2009] EWCA Civ 743.
2. West London County Court: HHJ Behar, on 27 June 2008, refused to set aside the County Court enforcement order. A District Judge had previously rejected the application.
3. Appeal tribunal: on 6 February 2006, decided that the appellant was not entitled to housing benefit but did not expressly determine whether the overpayment was recoverable.