Summary
This case considered whether it was correct to withold payment of housing benefit (HB) that was dependant on an award of income support (IS) where IS fraud was suspected. The conclusion was that it was lawful.
"Having considered these submissions and the authorities, my conclusion is as follows. There are two reasons why this appeal should fail. First, it accords both with commonsense and the intention and structure of the legislation, that where, as here, entitlement to housing benefit is dependent on receipt of income support, that income support must have been lawfully obtained; that is, lawfully in the sense of neither by fraud, nor dishonestly. Secondly, the principle apparent from cases such as Shah dictates that legislation should not be so construed as to enable a man to profit from his own fraud. I would therefore dismiss the appeal."
The effect of this decision
Commissioner's decision CIS/333/2004 applied the same approach as "Ribble". A claimant’s claim for income support depended on her being entitled to severe disability premium (SDP). Her claim was disallowed on the grounds that someone was receiving carer's allowance (CA) on the basis that he was caring for her and so the rules for SDP were not satisfied.
The claimant appealed on the grounds that the person in receipt of CA was not, and never had been, her carer. An appeal tribunal in dismissing her appeal followed an earlier commissioner's decision (CSIS/167/1996) and held that they had no jurisdiction to consider whether the CA award was lawfully made. The actual CA award was subsequently disallowed.
On a further appeal (CIS/333/2004), the Commissioner held that:
- CSIS/167/1996 should no longer be followed in the light of “Ribble”
- the tribunal had erred in law by failing to investigate the allegations that the CA award was fraudulent
- the whole award of CA was invalid because it had been obtained dishonestly
- payments of CA should be disregarded in the calculation of the claimant's entitlement to IS.
The Secretary of State has decided not to apply for leave to appeal CIS/333/2004 to the Court of Appeal but has issued guidance (memo dmg vol 1 09/05) for decision makers considering similar cases.