PLH                                                                            Commissioner's File: CH 3622/06

	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 against the decision of the Wigan appeal tribunal (Mr N Warren, chairman, sitting alone) on 20 March 2006 must be allowed, as the tribunal’s decision was procedurally defective.  The decision notice issued on the date of the hearing at page 240 purported to “disallow” an appeal before the tribunal in the name of the claimant’s wife, when in fact the chairman partially allowed it by directing the local authority’s decision be revised in the claimant’s favour, and no formal record of the tribunal’s actual decision (that a reduced amount of overpaid housing and council tax benefit was recoverable from him) appears ever to have been issued.  Further, the tribunal’s decision failed to resolve an apparent confusion in the documents over whether the overpaid benefit was, as a result of the decision under appeal, separately recoverable from the claimant’s wife as apparently assumed by the council, and whether she was properly the appellant before the tribunal in her own right at all.
     2.     	I set the decision aside and on the basis of the factual findings recorded in the chairman’s statement dated 29 December 2006 at pages 253 to 254 (standing as the tribunal’s statement of facts and reasons pursuant to my direction on granting leave to appeal on 22 March 2007) exercise the power in paragraph 8(5)(a) Schedule 7 Child Support, Pensions and Social Security Act 2000 to give the decision I am satisfied the tribunal should have given on those facts, and the revised figures which in my view are now beyond reasonable dispute.  That decision is as follows:
	(1)	the claimant and proper appellant at all material times for the purposes of the appeal to the tribunal was Mr D H, to whom the local authority’s letter under appeal dated 5 April 2004 had been issued, and not his wife Mrs F H;
	(2)	the claimant’s earlier awards of housing benefit on his two addresses for successive periods from 17 April 2000 to 7 April 2003 inclusive, and council tax benefit for the same addresses from 12 March 2001 to 23 March 2003 inclusive, were correctly revised by the council on 5 April 2004 so as to reduce his entitlement, but as regards housing benefit only to impose the more limited reduction shown in the recalculation notified to him on 4 April 2006, not that originally notified to him in the decision letter and calculations of 5 April 2004;
	(3)	the resulting recalculated amounts of overpaid housing benefit for the periods from 17 April 2000 to 7 April 2003 inclusive totalling £1,208.31, and excess council tax benefit for the periods from 12 March 2001 to 23 March 2003 inclusive totalling £309.87, are legally recoverable from the claimant Mr D H under sections 75 and 76 Social Security Administration Act 1992, none of that overpayment or excess having been due to official error; 
	(4)	the appeal against the council’s decision of 5 April 2004 is accordingly allowed to the extent of reducing Mr D H’s liability as claimant for the recovery  of overpaid and excess benefit to those amounts;
	(5)	contrary to the contentions of the council, that decision was not effective to impose any corresponding liability on the claimant’s wife Mrs F H, since she was not the claimant or recipient of any of the awards in question and the decision was not addressed to her, nor did it purport to make any overpaid or excess benefit recoverable from her so as to give rise to any such liability, or any separate right of appeal for her under paragraph 6(6) of Schedule 7 to the 2000 Act or regulation 3 of the HB and CTB (Decisions and Appeals) Regulations 2001 SI No 1002.
     3.     	This appeal is solely concerned with the awards of housing and council tax benefit the council made for the above periods to Mr D H.   All had been made to him on the basis of claim forms which had clearly identified him as the claimant, though each had been countersigned by his wife Mrs F H so as to confirm the details relating to her. See the copy claim forms for the relevant periods at pages 165, 179, 193 and 207, and award letters at pages 22, 24 and 26, all addressed to the claimant alone.  (The award for the initial period from 17 April 2000 appears to be missing from the documents originally submitted to the tribunal, though there seems no doubt it was similarly addressed, as the recalculated versions later produced by the council following page 241 show.)  In none of the claim forms did the claimant or his wife disclose the (now undisputed) fact that at all material times she was in receipt of an occupational pension derived from the employment of her previous husband, material to the calculation of both housing benefit and council tax benefit claims as it added to the reckonable income that had to be taken into account.  In consequence, the claimant’s awards only took account of the income and other details they did disclose, and he was paid and or allowed more than he was entitled.  
     4.     	All of that is clearly shown by the evidence before the tribunal and is not open to dispute.  Nor has it actually been disputed, by either the claimant or his wife, at any point in the appeal proceedings she pursued with his concurrence against the corrective decision letter issued by the council on 5 April 2004 after the true facts came to light.  
     5.     	As the copy of that letter at pages 124 to 126 shows, it was issued (correctly) to him alone, as he had been the claimant and recipient in respect of each of the original awards.  It redetermined his entitlement retrospectively for the material periods back to 17 April 2000 on what were then understood to be the correct figures; and in conjunction with the further letters also issued to him on that date showing the detail of the calculations, determined in terms that the resultant amounts of overpaid and excess benefit were legally recoverable from him.  
     6.     	The only factual issue sought to be raised by the claimant’s wife in the appeal proceedings concerned the reasons why (as was admitted) neither she nor the claimant had disclosed the relevant details about her extra occupational pension in any of the forms they both signed.  Her explanation about this, given in oral evidence at the hearing on 20 March 2006, was rejected by the tribunal chairman as untrue for the reasons he explained in his statement at pages 253 to 254.  On that basis he concluded that there was no question of the overpaid or excess benefit having been due to “official error”, with the consequence that there was no bar to its being legally recoverable by the council under sections 75 and 76 of the 1992 Act. 
     7.     	Those conclusions are in my judgment unimpeachable, and not open to legitimate challenge in these proceedings.  However the procedural aspects of the way the case was dealt with at the tribunal were less satisfactory, and have given rise to some confusion and ambiguity as to the result in terms of actual legal liability which in my judgment it is necessary to clear up with the substituted decision set out above.  
     8.     	In the decision notice dated 20 March 2006 at page 240 the chairman noted, and his statement of reasons further explains, that he had very properly identified some discrepancies in the council’s calculations which appeared to overstate the amount of benefit that had been overpaid; and accordingly instead of simply “disallowing” the appeal as inaccurately stated at the top of the decision notice, he in fact directed that some further evidence be provided by the council with a view to a final determination identifying the true amount overpaid being issued by him in due course.  
     9.     	Unfortunately however it appears that although the council did provide the corrected figures and issued a revised notification to the claimant on 4 April 2006 showing the reduced overpayment now calculated to be due from him, the results were never incorporated in a properly completed decision issued by the tribunal to the parties. It appears the chairman informally recorded his approval of the corrected figures in a manuscript note to the tribunal clerk on 30 June 2006, which was communicated to the claimant’s wife, though not apparently to the council, and this was all that happened: pages 244A, 246.  Moreover, neither the original decision notice nor the informal note about the amount spelt out at all clearly what the legal consequences were found to be in terms of actual liability: an essential gap to be bridged in the circumstances of this particular case, since at no point had anyone addressed the fact that the decision under appeal had been issued to the claimant alone yet the appeal was apparently being pursued in the name of his wife.   It is of course vital for any tribunal to be certain of the status of the parties before it, especially with recovery proceedings in prospect; the importance of clarity here being underlined by the council’s apparent assumption, adhered to in its most recent submissions to me on this appeal, that for this purpose the claimant and his wife were interchangeable, so the decision issued to him about his entitlement automatically also had the effect of making any overpaid benefit legally recoverable from her.  
     10.     	That assumption is of course mistaken.  Since the decision letters under appeal had been issued solely to the claimant himself, and had not contained any suggestion that any overpaid or excess benefit was recoverable from anyone other than him (let alone specifying any proper legal basis for making it so), there was no way those letters could have imposed legal liability on, or given rise to any right of appeal for, any person other than the claimant himself.  The claimant’s wife had thus been wrongly named as the appellant in the title to the appeal proceedings, but as it was plain from the letter she brought to the hearing (page 228 and chairman’s note of proceedings at page 235) they were in fact being pursued with his knowledge and concurrence, he should have been treated as the true appellant. That may well have been the actual basis on which the chairman proceeded to deal with the case, as it is the only one on which it could properly have been considered at all.  As there was no separate appeal in the name of the claimant himself I think it fairest to all parties to assume that was what happened: though the failure to correct the record of the proceedings, and the consequent ambiguity in terms of legal result, still makes it necessary in my judgment for the decision to be set aside.
     11.     	I reject the argument still maintained by the council in its submissions at pages 266 to 269, that the effect of either its own decision of 5 April 2004 or that of the tribunal of 30 March 2006 was to impose liability for the overpayment on the claimant’s wife because, in its words, “During the relevant period the claim has always been a joint claim”.  In the first place, the documents already referred to show that so far as the periods at issue in these proceedings are concerned this was simply not the case in fact, and the husband was on each occasion the only claimant.  Even though each claim form he signed in that capacity was also countersigned by his wife, it is plain from the forms themselves that in none of the ones relating to these periods did she purport to sign as the “person claiming”; the claimant, and the person required to countersign as partner, being clearly differentiated.  Secondly, there cannot be any such thing as a “joint claim” by a couple in this context anyway, as the regulations clearly require any claim for housing or council tax benefit to be made by just one of them, it being up to them to choose which: see the Commissioner’s decision in case CH 3817/04 paragraph 8, regulation 71(1) Housing Benefit (General) Regulations SI 1987 No.1971, regulation 61(1) Council Tax Benefit (General) Regulations  SI 1992 No. 1814.  
     12.     	The council’s argument to the contrary is simply incorrect, and obviously so; and it must in my judgment follow that although its investigations appear to show that it was the claimant’s wife who was primarily responsible for the non‑disclosure that led to the overpaid and excess benefit being awarded in this case, the procedure adopted here has been insufficient to impose any legal liability on her that could warrant separate recovery action against her, without there having been a separately appealable decision establishing a proper basis for a quantified liability on her part.
     13.     	For those reasons, I allow the appeal to the extent of substituting the decision set out above.  Insofar as it is pursued I decline the request by the claimant’s wife in her reply observations for an oral hearing of this appeal. She says she cannot attend in any event where such hearings are normally held, and her only points are attempting to reopen the facts and the evidence: she has not sought to make any submissions at all on any of the points of law which have caused me to have to set aside the tribunal’s decision and (to some extent at least) give a more favourable outcome so far as she personally is concerned than either she or the council had assumed.
(Signed)
P L Howell
Commissioner
10 October 2007