About this case:

• Citation:
  NIVT 26/21
• Judgment:
  External link
• Court:
  Northern Ireland Valuation Tribunal

The Northern Ireland Valuation Tribunal (NIVT) relied on principles of unreasonableness in accepting this appeal, and recommended that Department members involved with decision making be ‘adequately trained’ to prevent a repeat of this behaviour.

Background

The tribunal hearing concerned the appellant, being the spouse of the person with the disability, now deceased, and the Department of Finance.

The Department previously decided that the appellant was not entitled to claim Disabled Person’s Allowance (DPA) for a period before his wife’s death.

Although his wife had a qualifying disability, the Department wrote to the appellant confirming that DPA would be awarded only from 1 April 2020 until 6 July 2020, which was the date of death of the person with disability.

However, the Department in this letter refused the appellant’s request for the DPA award to be backdated to include the previous year. The stated reason for such refusal was that, as the Department put it: “Land and Property Services [LPS] is guided by legislation and under Article 31A (7),(8) of the Rates (Northern Ireland) Order 1977, Disabled Persons Allowance cannot be backdated any further than the start of the rating year when the application was received no matter when entitlement started.”

The tribunal noted that the categorical and seemingly unqualified statement by the Department was questionable and inaccurate. The Department offered to the appellant an opportunity to have that determination reviewed, which he accepted.

What purported to be a review was, “worryingly”, a restatement of what had been said before, repeating verbatim the words contained in the first letter. Based on this, the appellant appealed to the Northern Ireland Valuation Tribunal.

The Appellant’s Case

The appellant sought DPA from April 2019-2020, indicating that he would have applied for this sooner had he been aware of the relief. Each year the Department issues an informational leaflet about DPA, and the Department felt that the information had therefore been communicated clearly to the appellant.

The appellant argued that he was ignorant of his right to apply for DPA, and that the inclusion of this information in a leaflet was paramount to being told to “check the fine print”. He also paid his rates by direct debit, meaning that he was less likely to seek out such information.

He further argued that the legislation relied on, Article 31A of the Rates (Northern Ireland) Order 1997, by which the Department stated it was “guided” (i.e. not “governed”) in paragraph 8(b), does allow for a backdated allowance or payment to be made, “in such circumstances, and to such extent as the Department may determine”.

In response, LPS made the very literal argument that the leaflet detailing available help with rates is issued on an A4 sheet, meaning that it does not fall under the category of “fine print”. They further argued that they were aware that DPA could be backdated, but were not given an adequate reason to do so in this case.

Tribunal Findings

The tribunal firstly noted that the Department did have a statutory discretion to backdate any DPA award prior to the relevant year in which any claim for DPA is made. The second issue to determine was whether this discretion had been properly exercised.

The tribunal stressed its concern regarding the “unqualified and seemingly categorical assertion” made in the two communications with the appellant which suggested that the Department had no discretion in the matter:

The phraseology, it was held, was at best ambiguous as to whether the restriction on backdating payment was absolute, which would constitute a clear misstatement of the law. This stance was also later altered when they claimed “LPS is aware that Disabled Person Allowance awards can be backdated further than the start of the rating year [sic] which the application was received”.

The tribunal was “at a loss” to understand the categorical and “entirely legally erroneous” statements contained in the Department’s letter dated 11 January 2020 and repeated verbatim in the 15 February 2020 review outcome letter.

The tribunal relied on the case of Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223, where the court concluded that to have the right to intervene in a decision-making process under the heading of unreasonableness, the court would have to conclude that:

1. in making the decision, the [public authority] took into account factors that ought not to have been taken into account, or
2. it failed to take into account factors that ought to have been taken into account, or
3. the decision was so unreasonable that no reasonable authority would ever consider imposing it.

Conclusion

The tribunal found that the decision-maker, at the time the letters were issued, fundamentally misunderstood the applicable law and the matter of statutory discretion. However, there was no irrational, improper or intentional misstatement of the law with a designed intention of misleading the appellant. The tribunal was also wary of the extent of the misunderstanding within the Department and officials.

The Department’s decision-making, both at first instance and in its own review process, was flawed, and the appellant’s appeal succeeded.

Further, the tribunal recommend that any Departmental decision-makers should be afforded appropriate and adequate training in the relevant statutory provisions and that the Department should develop guidance for decision-makers on the principles underpinning the proper exercise of statutory discretion, both in theoretical terms and also in real and practical terms.

Finally, the tribunal recommended that the Department take all proper steps to prevent any risk of repetition of what the tribunal observed in this case.