FYE v Middlesbrough City Council

Under regulation 9(1)(l) of the Housing Benefit Regulations 2006, the question is whether the claimant’s liability was created to obtain an improper advantage from the housing benefit scheme. The tribunal must first find the relevant facts and then make an evaluative judgment on their combined effect. Evidence from the original decision-maker about the decision-making process is not required at the evaluative stage. On appeal, the Upper Tribunal must respect factual findings adequately supported by the evidence and intervene only for an error of law. A tribunal may rely on its experience when assessing evidence, but it must not treat general background material as an authoritative statement of law. Where the facts admit only one proper evaluative conclusion, an error in a subsidiary consideration will not invalidate the decision.

These were lead appeals concerning supported accommodation and housing benefit. The First-tier Tribunal found that the appellants’ rental liabilities had been created to take advantage of the housing benefit scheme and therefore engaged regulation 9(1)(l) of the Housing Benefit Regulations 2006. The appellants challenged, among other matters, the refusal to require local-authority decision-makers to give evidence, the tribunal’s approach to proof and valuation, its reliance on parliamentary material, and its consideration of support-related matters.

The appeals were brought from decisions of the First-tier Tribunal (Social Entitlement Chamber), references SC269/20/00946 and SC236/21/00280, dated 29 April 2024. The central issue was whether those decisions involved an error of law.

1. The appeals were dismissed. The First-tier Tribunal’s decisions did not involve an error on a point of law under section 12 of the Tribunals, Courts and Enforcement Act 2007.
2. An appeal to the First-tier Tribunal in a social-security case involves a complete reconsideration of entitlement, subject to the statutory qualification identified by the judge. The decision-makers were therefore not required to give evidence about their thought processes. They could make submissions supporting their decisions, while the tribunal independently assessed the facts and applied the statutory test.
3. Regulation 9(1)(l) involves two stages. The tribunal must find the relevant facts and then decide whether the liability was created to take an improper advantage of the housing benefit scheme. The second stage is an evaluative judgment. Evidence from the decision-maker has no role in that evaluation.
4. The Upper Tribunal distinguished factual findings from evaluative judgments. A factual mistake is not itself an error of law on these appeals. The First-tier Tribunal was entitled to use the experience of its judge and financially qualified member when assessing evidence, while remaining dependent on the evidence before it.
5. The tribunal was entitled to treat the parliamentary report as general background. It did not use the report as an authoritative statement of law or as determinative of the individual cases. The evidence of rents and the financial structure was sufficient to support the finding that the liabilities were contrived. Profit was not necessarily an essential feature of contrivance; the relevant concern was unnecessary or inappropriate expenditure of public funds, although that wider point was not required for the decision.
6. Any improper consideration of support-related matters did not cause a material error. Read as a whole, the First-tier Tribunal’s reasons made clear that its conclusion rested independently on the funding structure and other findings. The support issue was accordingly not determined.

• Upper Tribunal (Administrative Appeals Chamber): appeals from the First-tier Tribunal were dismissed. The decisions dated 29 April 2024 were held not to involve an error of law.
• First-tier Tribunal (Social Entitlement Chamber): found that the appellants’ liabilities had been created to take advantage of the housing benefit scheme.