CH 4234 2004
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 12 May 2006 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 4234 2004 |
| Subject Matter | Housing and council tax benefits |
(H) 6/06
|
Mr M Rowland, Commissioner Mr E A L Bano, Commissioner Mrs E A Jupp, Commissioner 12 May 2006 |
CH/4243/2004 |
Recovery of overpayment – housing benefit – scope of appeal rights where an overpayment is recoverable from more than one person
The claimant appealed against a decision in 2003 that an overpayment of housing benefit was recoverable from him, arguing that it should be recovered from the landlord instead. The tribunal dismissed the appeal, relying on R(H) 3/04 for the proposition that its jurisdiction was limited to points of law. The claimant appealed to the Commissioner. The Chief Commissioner directed that the appeal be heard by a Tribunal of Commissioners because it involved questions of law of special difficulty and, in particular, the questions whether regulation 101(2) of the Housing Benefit (General) Regulations 1987 was defective and whether Secretary of State for Work and Pensions v Chiltern District Council [2003] EWCA Civ 508 (also reported as R(H) 2/03), which was followed in R(H) 3/04, was correctly decided and, if not, whether it was binding upon Commissioners. Regulation 101 had been amended with effect from October 2001 and again from April 2006
Held, allowing the appeal, that
- the decision of the Court of Appeal in Chiltern was not material to the issues before the Commissioners, since either it construed regulation 101 of the Housing Benefit (General) Regulations 1987 in a way that was ultra vires, in which case it was no longer relevant because the legislation had been amended, or else it failed to draw the traditional distinction between recoverability and recovery, which was inconsistent with subsequent binding authority in the form of B v Secretary of State for Work and Pensions, which does recognise the traditional distinction between decisions as to recoverability (which are appealable) and decisions concerned with recovery (which are not) (paragraphs 26 to 38);
- R(H) 3/04 remained authority for the proposition that an appeal against the exercise of a non-justiciable discretion is limited to points of law (paragraph 39);
- however, properly construed, the primary legislation in force from 1 October 2001 required secondary legislation to specify whether an overpayment is recoverable from another person in addition to the person to whom it was paid or instead of the person to whom it was paid so that no non-justiciable choice falls to be made within a decision as to recoverability (paragraphs 40 to 52);
- regulation 101 of the 1987 Regulations as in force from 1 October 2001 and re-enacted in regulation 101 of the Housing Benefit Regulations 2006 until 9 April 2006 must be construed so that an overpayment is recovered from those mentioned in regulation 101(2) as well as the person to whom the overpayment was made, except where regulation 101(1) applies and it is not recoverable from the latter person and regulation 101(2)(b) as in force from 10 April 2006 must be read in the same way (paragraphs 53 to 58);
- a single decision as to the recoverability of an overpayment should always be addressed to all those from whom it is recoverable and, if the overpayment is not recoverable from the person to whom the overpayment was made, it should include a decision to that effect and be addressed to that person. Then, if there is an appeal, every relevant person is likely to be a party (paragraphs 59 and 60);
- if that is not done and a tribunal finds that an overpayment is recoverable from both the appellant and a person who is not a party to the proceedings, the tribunal should simply set aside the decision under appeal and leave the local authority to make a fresh decision (paragraph 61);
7. in the present case the overpayment was clearly recoverable from the claimant, but was also probably recoverable from the landlord, and the local authority’s decision would be set aside (paragraph 65).
DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS
- We allow the claimant’s appeal. We set aside the decision of the Sutton appeal tribunal dated 8 June 2004 and we substitute the decision that the tribunal should have given, which is to set aside the refusal of the local authority to supersede the decision of 22 April 2003 that the overpayment of housing benefit from 2 September 2002 to 20 April 2003 is recoverable from the claimant. However, this does not preclude the local authority from making a fresh decision, which, on the material before us, we would expect to be to the effect that the overpayment is recoverable from both the claimant and his landlord.
REASONS
The facts
- The claimant was awarded housing benefit with effect from 22 January 2001. In early 2003, it came to the attention of the local authority that he had become a full-time student in 2002 and had been awarded a student loan. The claimant was interviewed and, on 22 April 2003, the local authority superseded the award of housing benefit with effect from 2 September 2002 and decided that he was not entitled to housing benefit from that date. It also decided that £6,711.15 had been overpaid from 2 September 2002 to 20 April 2003 and that that sum was recoverable from the claimant. He did not challenge that decision. On 5 September 2003, he was conditionally discharged for two years by a magistrates’ court and ordered to pay £100 costs, having pleaded guilty to “various benefit fraud” charges related to the decision. He started to repay the overpaid benefit at the rate of £100 per month.
- The claimant’s rent had never been referred to a rent officer because the local authority had been under a misapprehension as to the landlord’s status. Having discovered this error, the local authority revised or superseded the award of housing benefit from 22 January 2001 to 1 September 2002, deciding that the claimant had been entitled to only £70 per week until 2 December 2001 and to nothing thereafter and that, in consequence, £13,785.98 had been overpaid to the landlord and was recoverable from it. It appears from later correspondence that the overpayment had arisen due to a misrepresentation by the landlord. The landlord did not challenge the decision. Nor did it challenge similar decisions made in respect of other tenants for the period up to 23 June 2003.
- However, the claimant, who had been given notice on 5 November 2003 of the decision that the overpayment up to 1 September 2002 was recoverable from the landlord, did react to that decision. On 24 November 2003, he wrote to the local authority arguing that, to the extent that his housing benefit should have been restricted from 2 September 2002, the overpayment from 2 September 2002 to 20 April 2003 should also be recovered from his landlord and not from him. He said that, had his eligible rent been limited, he would have sought alternative accommodation and so reduced his liability for rent. On 19 December 2003, the local authority refused to supersede the decision of 22 April 2003, stating that the whole of the overpayment from 2 September 2002 was attributable to the claimant’s own failure to declare his change of circumstances because, without that failure to disclose a material fact, no housing benefit would have been paid.
- After unsuccessfully applying for a revision of that decision, the claimant appealed. On 8 June 2004, the tribunal dismissed his appeal on the ground that the local authority was entitled to recover the overpayment by virtue of regulation 101 of the Housing Benefit (General) Regulations 1987 (SI 1987/1971) and that the tribunal’s jurisdiction on the appeal was limited by virtue of R(H) 3/04 to considering whether the local authority had acted in bad faith, had reached a perverse decision and had considered all relevant matters. The claimant now appeals against the tribunal’s decision with the leave of Mr Commissioner Bano. After an initial hearing before Mr Commissioner Bano, the Chief Commissioner directed that the appeal be heard by a Tribunal of Commissioners because it involved questions of law of special difficulty and, in particular, the questions whether regulation 101(2) was defective and whether Secretary of State for Work and Pensions v Chiltern District Council [2003] EWCA Civ 508 (also reported as R(H) 2/03), which was followed in R(H) 3/04, was correctly decided and, if not, whether it was binding upon Commissioners.
The arguments of the parties
- At the hearing before us, the claimant appeared in person, the local authority was represented by Mr Steven Kovats of Counsel and the Secretary of State was represented by Mr...
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