EM CH 3829 2008
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 26 November 2009 |
| Neutral Citation | 2009 UKUT 245 AAC |
| Subject Matter | Capital |
| Respondent | London Borough of Waltham Forest |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 3829 2008 |
| Appellant | EM |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the appellant.
The decision of the London Fox Court appeal tribunal dated 17 March 2008 under file reference 160/07/04118 involves an error on a point of law. The decision of the appeal tribunal is therefore set aside.
I re-make the decision of the tribunal as follows:
The appellant’s appeals against the decisions of the respondent council in relation to housing benefit and council tax benefit dated 8 June 2007 are allowed, in large part at least.
The gross payments of £3,817.96 and £2,125.46 made on 19 September 2003 were payments of capital and not payments of income. They accordingly fall for assessment under Chapter VI of Part VI of the Housing Benefit (General) Regulations 1987, and not under any of Chapters II-V. They cannot be attributed backwards to cover the period from August 2000 under regulation 68 of the same Regulations.
The matter is remitted to the respondent council for recalculations of the alleged overpayment of housing benefit and excess payment of council tax benefit. That recalculation should not include the gross payments of £3,817.96 and £2,125.46. The gross payment of £691.80 made on 15 August 2003 can be included in the recalculation but only if the respondent council can demonstrate that it was a payment of income and not capital.
This decision does not affect any overpayment of housing benefit or excess payment of council tax benefit arising from any failure by the claimant to report any increase in ongoing weekly earnings after August 2003.
This decision is given under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
The decision in summary
1. The appellant’s appeal to the Upper Tribunal (formerly the Social Security Commissioner) succeeds. The decision of the London Fox Court appeal tribunal dated 17 March 2008 under file reference 160/07/04118 involves an error on a point of law. In the circumstances I can re-make the decision, being the decision which the tribunal should have made and as set out above. As a result the local authority will need to make new decisions, revising the calculations involved. These will presumably result in a much reduced total overpayment figure, and will give rise to a new right of appeal.
The issues in this appeal
2. The central issue in this appeal is whether the London Fox Court appeal tribunal erred in law in confirming the local authority’s decision that the appellant was liable for an overpayment of housing benefit (HB) in the sum of £3,459.29, and an excess payment of council tax benefit (CTB) of £1,066.12, for the period from 7 August 2000 to 27 June 2004. This decision refers only to those provisions governing housing benefit, but the effect of the relevant law is the same for both benefits.
3. The local authority’s case was that the overpayment of HB and excess payment of CTB were caused by two factors. The first was the fact that in August and September 2003 the claimant received three substantial lump sum payments from his employer which, so the local authority argued, represented arrears of pay going back to August 2000 and which accordingly had to be attributed over that entire period. The second was the fact that the claimant’s normal weekly earnings increased in August 2003, but he did not at the same time inform the appropriate office of this change. The position is complicated by the fact that the claimant is an employee of the same local authority (the London Borough of Waltham Forest) which has administered his HB and CTB claim.
The oral hearing of this appeal before the Upper Tribunal
4. I held an oral hearing of this appeal at Harp House on 21 October 2009. The claimant attended the hearing and was represented by Mr David Forsdick and Ms Jacqueline Lean of Counsel through the good offices of the Free Representation Unit. The local authority was represented by Mr Paul Stagg of Counsel. I am grateful to all three counsel for their very helpful submissions, both oral and written, which have assisted greatly in narrowing the issues to be resolved in this complex case.
The background to the appeal
5. The claimant started work with the London Borough of Waltham Forest (“Waltham Forest”) as a part-time driver on 17 March 1997. On 5 March 1997 he countersigned a standard form contract of employment. This contract stated that, in addition to a driver’s normal pay and allowances, “You will also receive bonus payments calculated in accordance with the scheme operated by the authority for your work group.”
6. On 17 March 1997, the day he actually started work, the claimant signed a new contract of employment. This appears to have been identical in all respects to the one signed on 5 March with one exception. The clause relating to bonus payments had been removed. Presumably someone in the council had spotted that the claimant had originally been issued with the ‘wrong’ contract, which applied to full-time drivers only. The new standard form part-time contract, with no provision for bonus payments, therefore superseded the earlier version.
7. Also in 1997, but at a national level, a “single status agreement” was reached between local authorities and trade unions designed to phase out employment practices which discriminated against part-time (and predominantly female) workers. It seems that the national agreement required councils to have local deals in place by April 2007. According to papers before the tribunal, by February 2008 there had still not been a local settlement on the full implementation of the single status agreement in Waltham Forest.
8. Meanwhile, the claimant had agreed a contractual variation from 1 June 2002, increasing his hours of work from 15 to 25 a week. This variation letter made it clear that “all other terms and conditions of your employment remain unchanged”. In other words, he had no contractual entitlement to bonus payments, unlike his full-time colleagues. This was despite the fact that the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551; “the PTWR 2000” or “the 2000 Regulations”) had been brought into force by then. These Regulations were made under section 19 of the Employment Relations Act 1999, which required the Secretary of State to make regulations for the purpose of securing that people in part-time employment were treated no less favourably than people in full-time employment. The PTWR 2000 were also intended to comply with the United Kingdom's obligations under Council Directive 97/81/EC, which required member states to implement the Framework Agreement on Part-Time Work.
9. Meanwhile, the claimant had been in receipt of HB and CTB from Waltham Forest for the period from 22 June 1998 until 27 June 2004. On 27 July 2003 the claimant filled in a HB and CTB review form. He declared his gross weekly income to be £200.11. This was an accurate statement at that time and there is no suggestion that he had received any lump sum payments (or weekly bonus payments) by this date.
10. Meanwhile Waltham Forest, as with many other local authorities, had for some years been faced with a campaign for equal pay and an end to discriminatory practices in the employment of part-time workers, based on the single status agreement and on the PTWR 2000, brought by trade unions on behalf of part-time workers such as the claimant (who, as it happens, was not himself a member of any trade union). Indeed one of the claimant’s workmates, another part-time driver in the same borough, had written to the local authority as long ago as July 2002, complaining that “this law [the PTWR 2000] has been on the statute books since 1st August 2000 yet the part-time drivers at Passenger Services are still not being paid the bonus that is being paid to full-time workers”.
11. Neither the appeal tribunal nor the Upper Tribunal had full documentary evidence as to how this matter was resolved in Waltham Forest, apparently because of difficulties in locating the relevant paperwork at the council. I refer to this further below. However, the evidence that was before the tribunal undoubtedly established the following matters.
12. On 6 September 2003 an internal council memorandum gave a stark instruction to the payroll department. In full, the memorandum stated:
“Re: Part Time Drivers Bonus
It has been decided to pay part-time Passenger Services drivers the same 31% bonus as full timers. Can you please start paying this A.S.A.P.
We are advised that legally we should have been doing this since August 2000 and have not done so. Therefore can you please do the required calculations to find out how much...
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