Sier, R v Cambridge City Council Benefit Review Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,LORD JUSTICE MANTELL,LORD JUSTICE SIMON BROWN |
| Judgment Date | 08 October 2001 |
| Neutral Citation | [2001] EWCA Civ 1523 |
| Date | 08 October 2001 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C/2001/0694 |
[2001] EWCA Civ 1523
IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT LIST)
The Royal Courts of Justice
The Strand
London
Lord Justice Simon Brown
Lord Justice Mantell
Lord Justice Latham
C/2001/0694
MR P STAGG (instructed by Moss Beachley Mullem & Coleman, 37 Crawford Street, London W1H) appeared for the Appellant
MR FINDLAY (instructed by the Head of Legal Services, Cambridge City Council, The Guildhall, Cambridge) appeared for the Respondent
Monday 8 October 2001
Between 20 July 1992 and 2 April 1995, the appellant received £6,600.10 by way of Housing Benefit and other associated benefits to which he was not entitled from the Cambridge City Council. The respondent has determined in two separate decisions, the first on 5 November 1997 and the second on 10 December 1999, that the appellant should repay this sum. Both decisions became the subject of judicial review applications which were dismissed by Richards J on 28 February 2001. The appellant now appeals to this court.
The appellant does not dispute that he has been paid money to which he was not entitled. During the relevant period he was receiving Housing Benefit, Community Charge Benefit, and Council Tax Benefit in respect of a property in Cambridge and a property in London in the City of Westminster. He was entitled to benefit only in relation to the property in London.
Housing Benefit was payable under the Social Security Contributions and Benefits Act 1992 and its predecessor. Section 130 of the 1992 Act provides:
"(1) A person is entitled to housing benefit if -
(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home;
(b) there is an appropriate maximum housing benefit in his case; and
(c) either:
(i) he has no income or his income does not exceed the applicable amount ."
The relevant statutory provision dealing with overpayment of Housing Benefit is section 75 of the Social Security Administration Act 1992. This provides:
"(1) Except where regulations otherwise provide, any amount of housing benefit paid in excess of entitlement may be recovered either by the Secretary of State or by the authority which paid the benefit."
The relevant regulation is Regulation 99 of the Housing Benefit (General) Regulations 1987 which provides:
"(1) Any overpayment, except one to which paragraph (2) applies, shall be recoverable.
(2) this paragraph applies to an overpayment caused by an official error where the claimant or a person acting on his behalf or any other person to whom the payment is made could not, at the time of receipt of the payment . reasonably have been expected to realise that it was an overpayment.
(3) In paragraph (2), 'overpayment caused by official error' means an overpayment caused by a mistake whether in the form of an act or omission by the appropriate authority or by an officer or person acting for that authority or by an officer of the Department of Social Security or the Department of Employment acting as such where the claimant, a person acting on his behalf or any other person to whom the payment is made did not cause or materially contribute to that mistake, act or omission ~"
There are like provisions in relation to the recovery of overpayments of Community Charge Benefit and Council Tax Benefit.
The decisions of both Review Boards were to the effect that paragraph (2) of the Regulation did not apply to the payments made to the appellant, so that the overpayments were recoverable.
The facts were that the appellant, then a merchant banker, suffered from a brain tumour in 1983 and become unemployed. From then onwards, he relied on Social Security Benefits, in particular income support. At the relevant time, therefore, he was a person who was entitled to Housing Benefit for his home, and Community Charge Benefit and Council Tax Benefit. When he become unemployed, he was living in rented accommodation in Cambridge, at 26 Malcolm Place.
To claim Housing Benefit he would from time to time complete an application form setting out details of the relevant accommodation. It included the following statement:
"I understand that it is my responsibility to tell the Benefits Service Office IMMEDIATELY of ANY change in my circumstances."
This declaration reflects the obligation contained in regulation 75 of the 1987 Regulations to the following effect:
"(1) if at any time between the making of a claim and its determination, or during the benefit period, there is a change of circumstances which the claimant, or any person by whom or on whose behalf sums payable by way of housing benefit are receivable, might reasonably be expected to know might affect the claimant's right to, the amount of or the receipt of housing benefit, that person shall be under a duty to notify that change of circumstances by giving notice in writing to the designated office."
In 1992 the appellant, according to his evidence, considered that it would help him to find employment if he was resident in London. Again according to him, having found possible accommodation at 26C Lupus Street, London SW1, he made enquiries of the Westminster Housing Department as to whether he could obtain Housing Benefit from them. He asserts that he was told that there was no bar to his obtaining Housing Benefit for two residences. He confirmed this, he says, by telephoning Kensington and Chelsea Housing Benefit Department, who gave the same answer. He therefore took a tenancy of the Lupus Street address and on 15 July 1992 made a claim for Housing Benefit in respect of that address. From then until 2 April 1995 he continued to receive Housing Benefit in relation to both addresses. It appeared that he would then spend the week in London and the weekends at Cambridge. At no time did he make any enquiry of the Cambridge City Council as to his entitlement to continue to receive Housing and other benefits, nor did he inform the Council of his change in circumstances. When he moved to London, he terminated his claim for income support from the Cambridge office of the Department of Employment and claimed Income Support from the local office in London.
In April 1995, the appellant exercised his right to buy the Cambridge property with the assistance of monies provided by a third party. This, not surprisingly, triggered enquiries from the Cambridge City Council which decided, among other things, to reclaim Housing and other Benefit which had been overpaid. He requested a review and ultimately this was heard by the Review Board which gave its decision in October 1997. In addition to his own evidence in support of his claim for a review, the appellant submitted among other documents a statement from a Mr Renbury who stated that he had telephoned Kensington and Chelsea Housing Benefits Department and been told that, as a matter of principle, a person already in receipt of Housing Benefit in one place was not debarred from a claim for Housing Benefit in another; that taking a flat in London to facilitate a hunt for a new job was the type of case in which two claims for Housing Benefit would be applicable; and that there was no overriding requirement for residence during at least four days each week for the purpose of a claim for Housing Benefit.
The basis of the appellant's claim for review was that the absence of any express requirement in the Cambridge City Council's application form for Housing Benefit to disclose where his home was, or whether he was applying for or in receipt of Housing Benefit elsewhere, represented a failure by the Council to ensure that the form requested all relevant information which amounted to an "official error" for the purposes of Regulation 99(2) of the 1987 Regulations. He further argued that he had disclosed his change in circumstances by attaching to his applications for Housing Benefit after July 1992 the Giro Payment Slip for benefit, which stated his address as 26 Lupus Street, London. The fact that this had not been noted by the Benefits Officer at Cambridge was also said to amount to an official error. The Review Board concluded there had been no "official error" within the meaning of regulation 99(2) in either respect, and that the cause of overpayment was the appellant's failure to notify Cambridge City Council of his change in circumstances.
As I have already said, this decision was the subject of an application for Judicial Review, which was refused on paper. At the oral hearing on 7 September 1998 the application was stayed on the basis that the appellant had then appreciated that for a period in July 1992, after he had moved into 26 Lupus Street, London, he was no longer in receipt of Income Support whilst his application to the appropriate Benefits Office in Westminster was being considered. By section 127 of the Social Security Administration Act 1992 and Regulation 2 of the Housing Benefit (Supply of Information) Regulations 1988, there is a power in the Department of Social Security to provide information of that nature to a local authority. The normal, but not invariable, practice of the Department would have to been to notify the Cambridge City Council of the cessation of Income Support on a form known as NHB8. For some reason that form was not completed in the appellant's case, or alternatively was not sent to the Cambridge City Council. This was said to provide an opportunity to the appellant to seek a further review of the decision to reclaim the overpayments. Counsel for the appellant indicated to the...
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