[2007] UKSSCSC CH_3309_2006 (20 February 2007)

PLH                                                                            Commissioner's File: CH 3309/06

	SOCIAL SECURITY ACTS 1992-2000

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

     1.     	This appeal by the local authority must succeed, as the Bristol appeal tribunal hearing the case on 4 April 2006 (Mr A D Walker, chairman, sitting alone) plainly misdirected itself on the relevant law when it held a sum of £1,854.37 council tax benefit mistakenly credited to the claimant irrecoverable from her because the mistake had been due to an official error to which she did not contribute.  I set the decision aside and in accordance with paragraph 8(5)(a) Schedule 7 Child Support Pensions and Social Security Act 2000 give instead the only possible decision that could have been given by the tribunal on the facts found by it and admitted before me: that the £1,854.37 excess council tax benefit mistakenly credited to the claimant for the period 8 December 2003 to 7 November 2005 inclusive is legally recoverable from her under section 76 Social Security Administration Act 1992 and regulation 84 Council Tax Benefit (General) Regulations 1992 SI No. 1814, because she does not meet the additional condition in regulation 84(2) to avoid the excess benefit being recoverable, that she could not at the relevant time reasonably have been expected to realise that it was excess benefit.
     2.     	According to the facts found by the tribunal which are not in dispute, the claimant applied for council tax benefit in June 2003 at which time she was receiving contribution- based jobseeker’s allowance.  In December 2003 she succeeded in getting a full-time job and from then on remained in employment at all material times with earnings that took her over the qualifying limit for any council tax benefit at all.  However she went on being credited with council tax benefit, to which she was not entitled, over the whole of the succeeding two years down to December 2005, when it was finally recognised by the Council that there had been a mistake and a decision to that effect was issued.  
     3.     	There was a dispute of fact between the claimant and the Council over where the blame for the mistake lay.  The Council’s decision withdrawing the benefit and holding the overpaid amount recoverable from her proceeded on the basis that she had never informed them of the change in her circumstances when she started work in December 2003.  Her evidence was that she had made repeated attempts to notify the Council, both through the Jobcentre and directly; and the apparent lack of any records in the Council’s possession to corroborate this was due to the shortcomings of the Council’s own systems rather than any fault of hers.  On the contrary, she had been trying over the whole period to get a corrected council tax bill out of them to show what she really owed, and had even gone so far as to send them a cheque for £100 on account in the Spring of 2004, though this had simply resulted in the money being mechanically paid back to her.  
     4.     	It is not necessary for me to go further into the actual evidence or attempt to say what I think really happened, because the tribunal chairman decided to accept the claimant’s evidence that she did indeed give timely notification to the Council about having started work so from then on the error was not her fault, and the Council accepts for the purposes of this appeal that these were findings the tribunal was entitled to make. 
     5.     	The appeal is however brought on the single, and in my judgment unanswerable, ground that even accepting those findings, they provide no basis for the tribunal’s conclusion that therefore the excess benefit was not legally recoverable from the claimant. That fails to give effect to the further important condition in regulation 84(2) under which, even in those circumstances, excess benefit paid or allowed by mistake remains legally recoverable by the Council unless:  
“(2) … the claimant or a person acting on his behalf or any other person to whom the excess benefit is allowed could not, at the time the benefit was allowed or upon the receipt of any notice relating to the allowance of that benefit, reasonably have been expected to realise that it was excess benefit.”
     6.     	There is no answer to the Council’s appeal on that ground.  The rules permitting recovery of council tax benefit paid or allowed by mistake are extremely wide, and although their operation may seem harsh in a case such as this if the facts were as found by the tribunal, neither the tribunal nor I have any choice about applying the legislation as it stands.  The whole of the claimant’s evidence to the tribunal was that she had been trying to get across to the Council that the circumstances affecting her benefit had changed, and she wanted a proper bill, because she knew she could not now be entitled to the council tax rebate they still persisted in allowing her despite everything she said.  Her submissions to me reiterate this, very frankly and honestly making clear that she knew she was not entitled to the benefit, and was making every effort to pay it back.  On that basis it was simply impossible for her to get within the exception in regulation 84(2) for people who could not reasonably be expected to realise they were being overpaid.  
     7.     	Although the tribunal chairman correctly summarised the effect of that regulation, and the terms of the exception, in paragraph 21 of his statement of reasons I have to conclude that he must simply have overlooked it when he came to express his conclusions on the facts of the case thus in paragraphs 26 and 27 on the next page:
“26.   It is hard to see what more the appellant could do.  She had contacted the local authority by letter and phone, she had visited in person and had actually made a payment which was rejected.  The tribunal considered that taking the totality of these events it was sufficient to put the local authority on notice that enquiries should have been made and the failure to do so amounted to an official error with the result that the overpayment was not recoverable.  
27.   The tribunal did not consider that the fact that the appellant had had dealings with the council tax office rather than the benefits service was sufficient to mean she contributed to the error.”
     8.     	The paragraphs just quoted contain the essence of the tribunal’s reasons for allowing the claimant’s appeal and holding the excess benefit irrecoverable from her; and I am afraid show they are plainly defective, as they fail to address the additional condition in regulation 84(2) that the claimant could not reasonably have been expected to realise she was being allowed benefit to which she was not entitled.  On that question the only reasonable conclusion to which the tribunal could have come on the claimant’s own evidence, accepted by the tribunal chairman as truthful, was that as she says herself in her submissions to me on this appeal at page 108:  “Of course I knew they were giving me benefit which I knew I was not entitled to, hence my visits, phone calls, letters trying to get this stopped and sorted out.”  On that basis the exception in regulation 84(2) cannot apply and  the money remains legally recoverable by the Council.  There is no element of penalty and certainly no criticism of her involved in this result.  All it says is she has mistakenly had too much benefit credited to her, and now that the mistake has (at long last) been recognised and put right, she is legally liable to account for it back just like a person accidentally credited with money that did not belong to her by some mistake at the bank. 
     9.     	For those reasons, I allow the Council’s appeal and substitute the decision set out in the first paragraph above.
(Signed)
P L Howell
Commissioner
20 February 2007