CH 5216 2001
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 08 October 2003 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 5216 2001 |
| Subject Matter | Housing and council tax benefits |
R(H) 3/04
|
Mr P L Howell QC, Commissioner Mr H Levenson, Commissioner Miss C Fellner, Commissioner 8.10.03 |
CH/5216/2001 CH/841/2002 CH/3880/2002 |
Housing benefit – overpayments – scope of appeal rights
In each of these cases housing benefit paid direct to the claimant's landlord turned out to have been overpaid, and the local authority determined that the overpayment was recoverable from the landlord under section 75 of the Social Security Administration Act 1992. It was not disputed that the overpayments lay within the authorities’ recovery powers, but each landlord appealed to the tribunal contesting his liability to repay: in CH/5216/2001 and CH/3880/2002 on the ground that the authority’s determination was procedurally defective for failure to specify reasons or rights of appeal, and in CH/841/2002 on the ground that it was unfair in the circumstances to seek recovery from the landlord rather than the claimant. The procedural argument succeeded before the tribunal in CH/5216/2001, but in the other two cases the appeals were rejected and the landlord’s liability for the overpayment confirmed
On appeal by the authority in CH/5216/2001, and by the landlords in the two other cases, questions arose about the scope of the statutory appeal rights against overpayment decisions in housing benefit cases under section 68 of and Schedule 7 to the Child Support, Pensions and Social Security Act 2000 in the light of the Court of Appeal’s decision in Secretary of State for Work and Pensions v. Chiltern District Council and another [2003] EWCA Civ 508, R(H) 2/03: in particular the ability of landlords to appeal against an authority’s choice to use its available statutory powers against them. The Secretary of State and the Child Poverty Action Group (representing the interests of claimants) were joined as additional respondents
Held, allowing the authority’s appeal in CH/5216/2001 and dismissing those in the other two cases, that
1. a person from whom overpaid benefit is determined to be recoverable under section 75 of the Social Security Administration Act 1992 has a single right of appeal under paragraph 6(6) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 against the making of that determination. The appeal is by way of a complete rehearing of the factual and legal basis for the determination itself (paragraphs 32 to 36, 49 to 50);
2. there is no separate right of appeal against any choice made by the local authority over whether to use its available powers under section 75. In any appeal against a determination under paragraph 6(6) the appellant may challenge the choice to make such a determination against him, but only on judicial review grounds, viz. that the authority's decision to do so was unlawful (paragraphs 44 to 48, 49(2), 51);
Secretary of State for Work and Pensions v. Chiltern District Council and another, supra, explained.
3. a tribunal may confirm a determination or substitute its own on appeal under paragraph 6(6) notwithstanding procedural irregularities on the part of the authority, provided there has been no significant prejudice to the appellant still uncorrected by the appeal process itself (paragraphs 74 to 76);
Haringey LBC v. Awaritefe (1999) 32 HLR 517 applied.
4. the determinations were not invalid and the overpayments were recoverable from the landlords.
Per Commissioners Levenson and Fellner: the regulations in force down to 30 September 2001 did not authorise recovery of overpaid housing benefit from claimants in that capacity alone.
DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS
Introduction
1. In these cases we were appointed as a Tribunal of Commissioners pursuant to section 16(7) Social Security Act 1998 to determine the questions of law of special difficulty facing tribunals and decision-makers on the practical application of the provisions for recovery of overpaid housing benefit under section 75 Social Security Administration Act 1992, following the creation of statutory rights of appeal relating to such overpayments from 2 July 2001 under section 68 and Schedule 7, Child Support, Pensions and Social Security Act 2000, and the decision of the Court of Appeal on 26 March 2003 in Secretary of State v. Chiltern District Council and Warden Housing Association [2003] EWCA Civ 508 [now reported as R(H)2/03] (the Warden case). In that case it was held that the jurisdiction of appeal tribunals under the statutory right of appeal extends to permit a challenge to any exercise of discretion, or choice, by an authority in initiating the recovery procedure against the particular appellant, rather than some other person also potentially liable under the Act or regulations for the same overpayment.
2. Two main questions were argued before us, each at present unresolved by authority. The first was whether the Court of Appeal’s decision means that on any such appeal the appeal tribunal is required to reconsider and redetermine for itself the entire merits of any such choice made by the determining authority, or is only concerned with the more limited question of the lawfulness and propriety of the use of its statutory powers. The second was whether the switch from the previous system of legal control of housing benefit cases by judicial review alone, to one of full statutory appeal to an independent judicial tribunal with jurisdiction to rehear and redetermine all relevant factual as well as legal issues, means that any procedural defect affecting the validity of an initial determination can now be cured in a proper case by the tribunal substituting its own decision after a rehearing, instead of the matter having to be remitted to the authority to start the process again as would have been the case under judicial review.
The three cases before us
3. In CH/5216/2001 Watford BC v. W & others, the facts were that the Council turned out to have overpaid one week’s housing benefit amounting to £110 to a private landlord, for one of his tenants for the week 18 to 24 December 2000 after she had moved out of the property; a fact of which the landlord was unaware. The authority sought to recover this money from the landlord who had been the direct recipient of the payment, relying on both its statutory powers of recovery under section 75 against the landlord as payee, and also an express undertaking previously given by him to refund any overpayment due in such circumstances. It issued letters determining the amount of the benefit overpaid in excess of entitlement, and (on 12 and 22 January 2001: pages 10, 13 to 14 of this appeal file) determining that £110 was recoverable from the landlord as the person to whom the overpayment had been made. The landlord appealed to the tribunal against that determination, resisting recovery on the ground that the claimant had a subsisting tenancy agreement until the following May, and he had been confused by the Council’s letters as to the basis on which recovery was being sought against him. There was no indication of any attempt at operating the recovery procedure against the tenant, and conversely no dispute that the money in question had been overpaid in excess of entitlement, though without “official error”, so that it was in principle within the authority’s powers of recovery. The tribunal, consisting (as is now the standard practice) of a legally qualified chairman sitting alone, allowed the landlord’s appeal and held that the overpayment was not recoverable from him, on the ground that the authority had failed to show it had operated the statutory procedure correctly. This was stated to be because the initial letter in December 2000 which had identified the overpayment had failed to specify the reason why it was recoverable, and although the subsequent determinations of 12 and 22 January 2001 did give an explanation of the basis on which recovery was being sought from the landlord, “the damage had already been done and the local authority are not entitled to cure the fundamental defect in their determination in this way” (page 30). The authority appeals with the leave of the single Commissioner on the ground that there was no material defect in the later determination, which was the one...
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