SN CH 2297 2009
| Jurisdiction | UK Non-devolved |
| Judge | Judge P. L. Howell Q.C. |
| Judgment Date | 18 February 2010 |
| Neutral Citation | 2010 UKUT 57 AAC |
| Subject Matter | Housing and council tax benefits |
| Respondent | London Borough of Hounslow |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 2297 2009 |
| Appellant | SN |
[2010] AACR 27
(SN v LB Hounslow (HB) [2010] UKUT 57 (AAC))
Judge Howell QC CH/2297/2009
18 February 2010
Recovery of overpayment – housing and council tax benefit – official error and separate causation
(Paragraphs 1 to 27 and 49 to 63 only are reproduced: see note to paragraph 27).
The claimant was awarded housing and council tax benefit from 23 May 2005. Between that date and January 2007 she failed to report promptly a number of relevant changes of circumstances, but the council also made errors, in particular treating her husband’s weekly earnings as if they were monthly, and the combined effect was that she was overpaid benefit over an extended period. In April 2007 the claim was finally reassessed correctly from the beginning and the council claimed to recover all the overpaid amounts from the claimant without differentiation. It acknowledged that there had been a mistake in its own calculations but determined that the totals overpaid were still legally recoverable from her under sections 75–76 Social Security Administration Act 1992 and the relevant regulations. The claimant appealed to the tribunal which held that it was not necessary to differentiate within the overall total between amounts that had been overpaid for different reasons, so that she was liable to repay the whole as a person who had “contributed to the overpayment” within regulation 100(3) of the Housing Benefit Regulations 2006. The tribunal cited R (Sier) v Cambridge CC HBRB (unreported 8 October 2001) [2001] EWCA Civ 1523 as authority that an overpayment was automatically recoverable if the claimant had contributed to it. The claimant appealed to the Upper Tribunal.
Held, allowing the appeal, that:
- it follows clearly from the definition of “overpayment” in regulation 99 of the Housing Benefit Regulations 2006 as “any amount” to which there was no true entitlement that overpaid amounts identifiable as attributable to separate and distinct causes, though comprised in the same total payment or credit as others, may need to be separated out and the causal and other inquiries required by regulation 100 applied to them separately (CH/858/2006 approved) (paragraphs 16 to 18)
- that approach was not inconsistent with the principle in Sier that causation in this context is concerned with the practical question of what really caused the overpayment in issue to be made: the question of different amounts overpaid from different causes within an overall total was not addressed in that case but the same factual and common-sense approach requires regulation 100 to be applied to such amounts separately (paragraphs 19 to 23)
- Sier does not stand as authority for any idea that the actual wording of the legislation should be ignored, or treated as if it said “overpayment” rather than “mistake” when or if any question of contribution to an official mistake should come to be considered and the notion of “contributing to” is best kept for the cases where the legislation expressly provides for it, and not allowed to confuse the primary question of the cause of a particular amount having been overpaid (paragraph 24)
- the decision of the First-tier Tribunal was therefore based on a misunderstanding of the effect of Sier and was erroneous in law (paragraph 26);
- in the present case the overpayments that resulted from the husband’s weekly earnings being wrongly entered and miscalculated were solely caused by an official error to which the claimant in no way contributed (paragraphs 50 to 54);
- there must come a point at which a claimant who has provided the correct information is entitled to assume the authority knows what it is doing and it would not have been reasonable to expect the claimant to realise that the benefit the council had confirmed three times as payable, after it had all the right figures, still included an overpayment due to the miscalculation of her husband’s weekly earnings: it followed that regulation 100(2) applied and the amounts overpaid from that cause were not recoverable (paragraphs 58 to 63).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The claimant’s appeal is allowed. The First-tier Tribunal’s decision is set aside as erroneous in law and replaced with this decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, that the claimant’s original appeal to the tribunal against the respondent authority’s decision of 16 April 2007 is allowed and that decision revised as follows:
- References in this decision to benefit being “overpaid” to the claimant include the crediting of amounts of housing benefit to her rent account and the allowance of excess benefit to her council tax account as well as any actual payment.
- For the week commencing 23 May 2005 there was no overpayment of either housing benefit or council tax benefit to the claimant.
- For the weeks commencing 30 May 2005 down to and including 16 April 2007 (HB) or 31 March 2007 (CTB) the claimant was overpaid totals of £9,833.86 housing benefit and £2,434.55 council tax benefit in excess of her true entitlement, made up as shown in the table at page 252 of the appeal file.
- Those totals comprised (a) amounts overpaid because figures taken into account from time to time in the benefit calculations for her husband’s earnings had been too low; plus (b) further amounts overpaid because figures so taken into account for child tax credits received by her husband had also been too low.
- Of those overpaid amounts,
(1) none actually paid, credited or allowed to the claimant after 25 February 2007 is legally recoverable from her under sections 75 and 76 of the Social Security Administration Act 1992, on the basis of the First-tier Tribunal’s findings to that effect which the authority has not sought to dispute in this appeal; and subject to that
(2) all those due to the child tax credit figures being too low are recoverable;
(3) of those due to the earnings figures being too low
(a) all actually paid, credited or allowed to the claimant during the period from 30 May 2005 to 23 November 2005 inclusive are recoverable;
(b) those actually paid, credited or allowed to the claimant during the period from 24 November 2005 to 25 February 2007 inclusive are not recoverable, except for those attributable to the increase in the husband’s basic weekly earnings from £384 to £404 on 1 May 2006 and the annual bonus he received on 16 December 2006 which are both recoverable.
- The case is remitted to the authority to recalculate and notify to the claimant as soon as possible the reduced amount of the overpayments remaining recoverable from her and each side is to be at liberty to apply within one month of the date of issue of this decision for any clarification or supplementary directions needed.
REASONS
Introduction
1. This appeal for which leave was granted by another judge is by the claimant against the decision of the First-tier Tribunal at Hounslow on 20 March 2009 (Mr P Quinn, First-tier judge, sitting alone) that for the purpose of deciding whether overpayments of housing and council tax benefit were legally recoverable from the claimant by the respondent authority (the council) it was not necessary to differentiate within the overall total between amounts that had been overpaid for different reasons, so that she could be liable to repay the whole as a person who had “contributed to the overpayment” even if only responsible for a minor part of the total amounts overpaid, and though much larger amounts within it had been overpaid due to quite separate mistakes made by...
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