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Neutral Citation Number:	2013 UKUT 29 AAC
Reported Number:
File Number:	CPC 1699 2012
Appellant:	Secretary of State for Work and Pensions
Respondent:	DL
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	17/01/2013
Date Added:	28/01/2013
Main Category:	Income support and state pension credit
Main Subcategory:	housing costs
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2013] AACR 22. Housing costs – ineligible service charges – general and administrative charges – proper method of calculation – inconsistency of approach between R(IS) 2/07 and R(PC) 1/07 The claimant owned on a long leasehold a flat situated within a retirement complex designed for independent, but supported, living of residents. All residents paid a monthly service charge. The claimant was eligible for help under state pension credit (SPC) towards her accommodation costs but not her supported living costs. The Department for Work and Pensions (DWP), after considering the information provided by the management agents, assessed the claimant’s eligible costs as just over £60.00 a month (the actual service charge was over £400). The claimant appealed to a First-tier Tribunal (F-tT) referring to a previous decision, CIS/2901/2004, later reported as R(IS) 2/07), and the DWP’s own guidance on implementing that decision. At the hearing the claimant was represented but the Secretary of State was not. After considering all the available evidence, the F-tT allowed the claimant’s appeal. The DWP appealed against that decision. It argued that the F-tT had misinterpreted the case law concerning the assessment of eligible service charges and had failed to undertake a sufficient analysis of the evidence. It was argued by the claimant’s representative that the Secretary of State was simply seeking to re-argue factual issues already decided by the F-tT and had misunderstood the evidence before the F-tT as well as the relevant case law. Held, dismissing the appeal, that: 1. an appeal at this level was not an opportunity to re-run the case on the facts or to raise points which had not been previously raised. It was axiomatic that the weight to be attached to any particular piece of evidence was quintessentially a matter for the fact-finding tribunal. As Rix LJ explained in Fryer-Kelsey v Secretary of State for Work and Pensions [2005] EWCA Civ 511 (reported as R(IB) 6/05), it was not the function of appellate courts, including the Upper Tribunal, “to set the appeal tribunal to rights by teaching them how to do their job of weighing the evidence” (paragraphs 29 to 30); 2. there was nothing to suggest that the F-tT had failed to apply properly the principles in R(PC) 1/07 regarding the use of data from other retirement developments to establish costs: it considered both personal and documentary evidence at the hearing and had not unquestioningly relied on evidence about other similar developments (paragraph 33); 3. the F-tT failed to adopt the approach advocated in cases CPC/968/2005 and R(PC) 1/07 to the allocation of administrative costs for “accommodation” and “support” purposes (to apportion them by the same ratio as eligible versus ineligible costs and not staff costs). Instead it inadvertently accepted the approach taken in R(IS) 2/07. But the assessment was inevitably complex and the eventual figure necessarily approximate. The legal system should strive for, but will not always attain, perfection and any error of law must be material to the outcome. Any difference in outcome for the claimant was marginal and she was content with the F tT’s decision. So, given the particular circumstances of this appeal, it was neither right nor proportionate to declare the F-tT’s decision erroneous in law only then to decline to set it aside or to re-make it in similar terms (paragraphs 46 to 49).
Decision(s) to Download:	[2013] AACR 22ws.doc