File number:  CH 2443 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I dismiss the appeal. For the reasons below, the decision of the tribunal is not wrong in law. 

2	The claimant and appellant is appealing, with my permission, against the decision of the Wakefield appeal tribunal on 16 April 2002 under reference U 01 008 2001 02606.  

3	 The appeal concerns a decision of the Council (Kirklees Metropolitan Borough Council) that the claimant had been overpaid £4,027.12 housing benefit and £911.42 council tax benefit between 1998 and 2000. It also, implicitly rather than explicitly, covers the decision to recover those sums from the claimant. Technically,  the appeal does not appear directly to have involved the recovery decision, although all involved appear to have operated on the assumption that it did. As the housing review board and all subsequent proceedings have been based on consideration of both the overpayment decision and the decision on recoverability, I deal with both.  

4	The claimant had been working for a local authority (not the Council) while claiming income support, housing benefit and council tax benefit.  As a result of a joint investigation by the Council and the Benefit Agency, the claimant was interviewed. She confirmed that she had been working while claiming. The Council therefore took the decision to stop her housing benefit and council tax benefit from the day she started her job. 

5	I am told that the claimant appealed against the separate decision stopping her income support, and lost that appeal. She also appealed against the decisions stopping her local benefits. These appeals went to a housing review board. The review board dismissed the appeal and also concluded that it could no longer exercise any discretion under regulation 100 of the Housing Benefit (General) Regulations 1987. The decision of the review board was subsequently set aside by a legally qualified member of the appeal tribunal as wrong in law, under the transitional regulations that applied when housing benefit and council tax benefit appeals were transferred to the appeal tribunals.  The appeal was then referred to an appeal tribunal for a full hearing.

The tribunal decision 

6	The tribunal had first to consider an application to the effect that the decision setting aside the review board decision was itself invalid, so that the decision of the review board remained in being. The tribunal decided that the set aside decision was effective, and therefore the tribunal did have jurisdiction to hear the case. That decision has not been challenged in this appeal. 

7	The claimant and representative conceded that the claimant had not disclosed her job to the Council, and that the overpayment amounts in the Council decision were correct. They made the submission again that regulation 100 ought to be applied, and made submissions on the merits of a decision that the claimant should not have to repay the overpaid sums. In essence the case for the claimant was that she had been given incorrect advice by her employers at her place of work about informing the authorities of her work. Further, that advice at least in part was given by an advice worker who was a specialist in the field. It later appeared that the adviser and others were engaged in a conspiracy, and at least one person involved in that conspiracy have been sentenced to a period of imprisonment. 	  The advice the claimant was given was, it was submitted, not only wrong but  deliberately wrong. 
   
8	The tribunal decided that it did not have any discretionary powers by reason of regulation 100 of the Housing Benefit (General) Regulations 1987.  Instead, the tribunal asked the Council to consider exercising the powers. 

Grounds of appeal 

9	The claimant applied for permission to appeal to the Commissioner on the issue of regulation 100. On first consideration of the papers, I issued a direction indicating that I did not consider the regulation 100 point arguable, but inviting a further submission from the applicant and representative. In reply, the representative raised an entirely different point under regulation 101 of the Housing Benefit (General) Regulations 1987. The point was whether the tribunal should have decided to recover the money from someone other than the claimant, namely her employer. It was, the representative argued, the employer that failed to tell the Council and Benefits Agency that the claimant was working, not her. I gave permission to appeal to consider this new point.

10	The Council made a full submission on regulation 75 and other relevant regulations. The primary submission was that the employer could not be caught within the scope of those regulations. The submission was supported by reference to relevant authorities from Commissioners. 

11	In reply, the representative submitted a further new point, namely that the tribunal had failed to make an adequate decision, in that it had failed to make adequate findings about the misrepresentations or failures to disclose in the case. 

My decision

12	I think it can be fairly said that the representative in this case has raised all issues that could be raised on behalf of the claimant, but they are to no avail. The law is clear. The claimant has been overpaid benefit and, so far as it is in dispute, is liable to repay the sums overpaid. 

13	First, I agree fully with the decision of the tribunal about regulation 100 of the Housing Benefit (General) Regulations 1987 (and any equivalent for council tax benefit). Whether or not review boards could exercise the powers that Councils had not to enforce overpayments may still be unclear. But even if they had those powers,  appeal tribunals did not receive them when the jurisdiction was transferred. The scheme of housing benefit decisions was changed so that the decisions going to tribunals were, as the chairman noted, entitlement decisions. Any residual discretionary powers were left with the political decision makers of local authorities and their staffs. It may be appropriate, as this tribunal did, to draw the attention of the local authority to facts that might be relevant to any discretionary decision. But it is beyond argument that the appeal tribunal and Commissioner do not have that power.

14	 Second, I reject the argument based on regulation 75 of the Housing Benefit (General) Regulations 1987 and the equivalent regulation for council tax benefit, and I accept the submissions of the Council on this issue. Regulation 75 is about the duty to notify changes of circumstances. That regulation imposed a clear duty on the claimant, but it does not impose any duty on any employer of the claimant. That being so, there is no occasion to consider if any decision under regulation 101 of the Housing Benefit (General) Regulations 1987 (persons from whom recovery may be sought) could apply to the employer. There is therefore no person other than the claimant from whom the Council can recover this overpayment.

15	Third, I reject any argument based on inadequacy of the tribunal decision. There were difficult issues in this case,  coming shortly after the introduction of a new jurisdiction. In my view the tribunal handled them in exemplary fashion.  The decision notice is entirely clear, and the statement of reasons is a full explanation of the decisions taken. 

16	I therefore dismiss the appeal. It is clear from the background information that the claimant was affected by serious criminal conduct for which others were convicted and sentenced. That is, however, irrelevant to her legal duty to repay overpaid housing benefit and council tax benefit if the Council decide to collect the overpaid sums from her. The duty applies even where the overpayment had occurred through innocent mistakes. The principle behind the overpayment provisions for local benefits is not one of fault or liability but one of restitution. If public funds are received in the form of housing benefit or council tax benefit when they should not be received, then they are liable to be refunded if the relevant authority so decides. The one exception relates to official error. That is not alleged here. It is for the Council to consider whether there is any basis for not recovering the sums. 

								David Williams
								Commissioner

								23 January 2003
[Signed on the original on the date shown]