Secretary of State for Work and Pensions v Chitern District Council and Warden Housing Association
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,LADY JUSTICE ARDEN,LORD JUSTICE BROOKE |
| Judgment Date | 26 March 2003 |
| Neutral Citation | [2003] EWCA Civ 508 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 March 2003 |
| Docket Number | C3 2002/2556 |
[2003] EWCA Civ 508
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
Royal Courts of Justice
Strand
London, WC2
Lord Justice Brooke
Lady Justice Hale
Lady Justice Arden
C3 2002/2556
MISS M DEMETRIOU (instructed by Office of the Solicitor, DWP, New Court, 48 Carey Street, London) appeared on behalf of the Appellant
THE RESPONDENTS DID NOT APPEAR AND WERE NOT REPRESENTED
This is the Secretary of State's appeal under paragraphs 8(2)(a) and 9(3)(a) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 against the decision of Mr Commissioner Jacobs, dated 15th July 2002. The Commissioner himself granted the Secretary of State permission to appeal on 21st October 2002.
The case concerns the recovery of overpayment of housing benefit. The parties to the appeal before the Commissioner were respectively the local authority concerned and the Warden Housing Association, the landlord to whom the benefit in question had been paid. Neither of those parties has appeared before this court.
The facts are simple. Mr McVeigh, who has played no part in these proceedings at all, was in receipt of housing benefit of some £108 a week while on job seeker's allowance. This was paid to his landlord. His job seeker's allowance ended. Accordingly, the local authority determined that he was no longer entitled to housing benefit from 23rd October 2000. On 8th January 2001 they wrote to Mr McVeigh stating that he had been overpaid housing benefit (totalling some £769) and that the overpayment would be recovered from his landlord. That same day they wrote to the landlord stating:
"… no further payments will be made, as Mr McVeigh is no longer entitled to Housing Benefit from 23rd October 2000.
As a result of this change, Mr McVeigh has been overpaid Housing Benefit totalling £769.86. This covers the above period at a weekly amount of £109.98.
An invoice is attached in respect of this overpayment and I should be obliged if you would settle this as soon as possible."
The Appeal Tribunal held that the overpayment could be recovered from the landlord.
The Commissioner commented that:
"If anyone involved in housing benefit work is looking for a Commissioner's decision to take to a desert island, this is the one."
The appeal before him raised a number of issues, but before us there are only two; so it is not such acceptable reading for a desert island as is his decision.
The first is whether an Appeal Tribunal has jurisdiction to hear an appeal against the local authority's exercise of their discretion as to person from whom they will recover any overpayment. The Commissioner held that it does not. The Secretary of State argues that it does. Miss Demetriou, on behalf of the Secretary of State, points out that landlords may well have legitimate complaints against the exercise of the local authority's discretion to recover the money from them. It is of course easier for the local authority to recover the money from the landlord, to whom it has been paid, but it may be unfair. The reasons for the overpayment are often within the control of the claimant, and within the knowledge of the claimant, but not within the knowledge of the landlord. The landlord simply continues to provide accommodation at the lawful rent in return for the money. He has not necessarily any reason to suppose that the claimant has ceased to be entitled to the benefit in question.
The second issue to arise on this appeal is whether the local authority must terminate housing benefit when a passport benefit ceases, or whether they must first determine whether other factors gave the claimant a continuing entitlement. The Commissioner held that they must consider other factors first. The Secretary of State argues that housing benefit should cease once entitlement to the passport benefit ceases.
Presumably, had they been here, the landlord would have supported the Secretary of State on the first issue and not on the second, and the local authority would have supported the Secretary of State on the second issue but not on the first.
First, the Tribunal's jurisdiction. Section 75 of the Social Security Administration Act 1992 deals with overpayment of housing benefits. At the material time section 75(3) provided:
"An amount recoverable under this section is in all cases recoverable from the person to whom it was paid; but, in such circumstances as may be prescribed, it may also be recovered from such other person as may be prescribed."
Such circumstances are prescribed by Regulation 101 of the Housing Benefit (General) Regulations 1987. At the material time, regulation 101(1) provided:
"Subject to paragraph (2) a recoverable overpayment shall be recoverable from either—
(a) [concerns cases in which the overpayment was a consequence of a misrepresentation or failure to disclose]; or
(b) in any case, the claimant or the person to whom the overpayment was made."
The right of appeal to a tribunal in housing benefit cases is governed by paragraph 6 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. Paragraph 6(1)(a) applies to any relevant decision of a relevant authority which is made on a claim for, or an award of, housing benefit, subject to the exceptions in paragraph 6(2). These include in subparagraph 6(2)(e):
"any such other decision as may be prescribed."
Paragraph 6(6) provides:
"Where any amount of housing benefit or council tax benefit is determined to be recoverable under or by virtue of section 75 or 76 of the Administration Act (overpayments and excess benefits), any person from whom it has been determined that it is so recoverable shall have a right of appeal to an appeal tribunal."
Regulation 16(1) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 provides:
"No appeal shall lie against a decision specified in the Schedule to these Regulations."
Paragraph 1(f) of the Schedule provides:
"No appeal shall lie against a decision made by virtue of, or as a consequence of … and Part XIII (overpayment) of the Housing Benefit Regulations except a decision under …
(f) regulation 101 (person from whom recovery may be sought);"
Paragraph 3 of the Schedule states:
"Subject to paragraphs 1(f) and 2(c), no appeal shall lie against a decision as to the exercise of discretion to recover an overpayment of housing benefit or, as the case may be, excess council tax benefit."
At first sight, it looks as if anyone from whom it has been determined that an overpayment is to be recovered, may appeal by virtue of paragraph 6(6) of Schedule 7 to the Act. The Decisions and Appeals Regulations exclude many...
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