KW CH 1868 2010
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 04 July 2011 |
| Neutral Citation | 2011 UKUT 266 AAC |
| Subject Matter | Housing and council tax benefits |
| Respondent | Lancaster City Council and Secretary of State for Work and Pensions |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 1868 2010 |
| Appellant | KW |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the claimant’s appeal but to re-make the First-tier Tribunal’s decision to the same effect.
The decision of the Lancaster First-tier Tribunal dated 12 May 2010 under file reference 067/09/00846 involves an error on a point of law. The First-tier Tribunal's decision dated 12 May 2010 is set aside. The Upper Tribunal re-makes that decision in the following terms:
“The housing benefit appeal is disallowed.
The local authority’s decision in relation to housing benefit issued on 3 September 2009 is confirmed.
The council tax benefit appeal is disallowed.
The local authority’s decision in relation to council tax benefit issued on 3 September 2009 is confirmed.
The relevant income was correctly applied under regulation 79(7) of the Housing Benefit Regulations 2006. There was no official error and the revised sums of £11,923.11 by way of the housing benefit overpayment and the £2,907.80 excess payment of council tax benefit are recoverable from the appellant.”
This decision is given under section 12(2)(a) and (2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
Introduction: what this appeal is all about
1. The claimant was paid housing benefit (HB) and council tax benefit (CTB) for several years on the basis that she was not receiving any child support. Those awards were all correct at the time that they were made because she was indeed getting no child support. However, the Child Support Agency (CSA) eventually extracted a substantial lump sum of money from the claimant’s ex-partner by way of arrears of child support. The CSA paid a large part of those arrears to the claimant. The local authority then recalculated the claimant’s entitlement to housing benefit and council tax benefit for the past period in question. Thus the heart of the appeal, according to the First-tier Tribunal (FTT) in its statement of reasons, involved:
“a question over the correct treatment of the appellant’s Child Support arrears and whether those should be included as income in the assessment of her entitlement to benefit for the relevant period.”
2. There is, of course, a starker way of looking at the problem. One arm of the State, the CSA, failed for more than 10 years to get a single penny out of the claimant’s ex-partner. As a result another arm of the State, the local authority, had to pay out to the claimant more by way of weekly means-tested HB and CTB for a decade. What should then happen when the CSA finally secured for the claimant the payment of thousands of pounds of arrears in child support maintenance? Is the local authority entitled to decide that, although through no fault of her own, the claimant had been overpaid HB and CTB for all the years in between and that she was now liable to repay those sums? This appeal therefore raises the questions of whether the local authority can and should recover any such overpayment.
3. The FTT (and on appeal the Upper Tribunal) is only able to decide whether the local authority can recover any such overpayment. There is no right of appeal on the issue of whether the local authority should actually recover any such overpayment, although I make some observations on this issue at the end of this decision. For the reasons that follow, my decision is that as a matter of principle the local authority can recover an overpayment of HB and CTB in such circumstances.
A summary of the child support background to this appeal
4. The claimant is a lone parent. She started receiving HB and CTB from Lancaster City Council (“the local authority”) in 1997. In May 1998, when she was claiming income support, she also applied for child support maintenance. In fact, of course, under the legislation as it then stood she was required by law to make that application (see the version of section 6 of the Child Support Act 1991 in force at that time).
5. In September 1998 the Child Support Agency (CSA) issued her husband (or now “non-resident parent” in the language of the 1991 Act) with a maintenance enquiry form (MEF).
6. On 12 March 1999, there being no response from the claimant’s ex-partner to the MEF, the CSA made a Category A interim maintenance assessment for £61.82 a week, effective from 16 March 1999. The claimant still received no child support maintenance. The claimant later told the local authority that when she had been on income support she had kept telling the CSA where her ex-partner was and where he was working “but nothing seemed to happen”.
7. In May 1999 the claimant started work; she stopped claiming income support but continued to receive both HB and CTB. As before, she received no payments of child support maintenance.
8. For the best part of the next 10 years, as with many other cases, the CSA made no progress and on the face of it appears to have taken little, if any, action in pursuing the claimant’s ex-partner either for current payments of, or the mounting arrears of, child support maintenance.
9. However, in April 2008 the claimant advised the CSA that her ex-partner’s property was up for sale. Spurred into action, in September 2008 the CSA obtained a liability order in the magistrates’ court for the sum of £23,535.75 in arrears of child support covering the period from 13 July 2000 to 29 October 2007. The CSA also put in train an application to the county court for a charging order.
10. Faced with this more robust approach, in February 2009 the ex-partner’s solicitors offered to pay the CSA £23,779 in settlement of the arrears of child support. On 13 March 2009 the CSA paid the claimant a lump sum of £16,965.17. The CSA also forwarded weekly payments of £61.82 for a few weeks. A further lump sum payment of some £6,000 was paid by the CSA to the claimant in the summer of 2009.
11. Meanwhile on 30 March 2009 – after the claimant had received the first and larger lump sum – the CSA converted the Category A interim maintenance assessment into a full maintenance assessment. The new full assessment provided for the payment of maintenance at various weekly rates from 22 September 1998 onwards, although there were nil liabilities between July 2001 and March 2003 and with effect from 10 April 2007, presumably reflecting e.g. periods of unemployment on the part of the non-resident parent.
12. The consequence of the full maintenance assessment was that the claimant’s ex-partner owed a total of £34,408.64 in child support for the period from 22 September 1998 to 9 April 2007. The CSA finally informed the local authority that the claimant herself had actually been paid a total of £23,779.75. This sum was said to cover the period from 13 July 2000 to 29 October 2007.
The local authority’s HB and CTB decisions and the claimant’s appeal
13. As noted above, the claimant started receiving HB and CTB in 1997. Her HB and CTB claim ceased on 29 October 2007. She then re-claimed HB and CTB with effect from April 2009. She told the local authority about the recent child support assessment and the March 2009 lump sum payment of child support, which naturally prompted the local authority to make enquiries of the CSA.
14. On 3 September 2009 the local authority made a decision superseding the awards of HB and CTB for the period from 10 May 1999 to 16 April 2007. The local authority attributed the lump sum payment of child support arrears on a weekly basis from July 2000 to October 2007. This produced an overpayment of £6,899.80 in HB and an excess payment of £2,127.31 in CTB. Those payments were found to be recoverable from the claimant.
15. On 28 September 2009 the claimant appealed. Her letter was short and to the point:
“I would like to appeal against the decision of overpayment as at the time of claiming housing benefit I was not receiving CSA [payments of maintenance] and did not expect this money at all. I was not the one pursuing this money as one day I got a phone call out of the blue saying that they had got this money. And I disagree with you putting me in any more debt as this is not my fault.”
16. The local authority made further enquiries of the CSA, as a result of which the overpayments were re-calculated (and substantially increased). The new decisions, made on 23 October 2009, were that the claimant had been overpaid from 10 May 1999 (an earlier start date than the one previously used). The resulting overpayments were now said to be £16,328.49 in HB and £3,996.53 in CTB.
17. On 1 December 2009 the local authority issued further decisions, reverting to the July 2000 start date for the period of the overpayment, and resulting in slightly reduced overpayments of £14,350.47 in HB and £3,358.08 in CTB.
The first First-tier...
To continue reading
Request your trial