CH 2567 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

1. This appeal by the claimant is brought by leave of the District Chairman of the tribunal, granted 2nd July 2007, and succeeds. In accordance with the provisions of section 8(5) of the Child Support Pensions and Social Security Act 2000 I set aside the decisions made by the Sutton Tribunal on 10th May 2007 (reference 154/07/01307). I substitute my own decisions to the effect that there was no recoverable overpayment of housing benefit or allowance of excess council tax benefit from the claimant in respect of the period 1st July 2005 to 22nd January 2006. 

Background 

2. The claimant was born on 11th December 1942. At all relevant times he was entitled to pension credit and was a tenant of the respondent local authority (“the authority”). On 28th February 2005 he claimed (and was subsequently awarded) housing benefit and on 4th March 2005 he was awarded or allowed a 25% discount on his council tax liability with effect from 4th February 2005. These awards were made on the basis that the claimant was a single person living alone. A further application for these benefits was made on 20th April 2005 and, on the same basis as before, the claimant was awarded housing benefit of £84.39 weekly with effect from 18th April 2005 and council tax benefit of £7.06 weekly with effect from 1st April 2005. On 25th February 2006 the claimant was awarded housing benefit of £91.14 weekly with effect from 3rd April 2006 and council tax benefit of £7.45 weekly with effect from 1st April 2006, also on the same basis as before.

3. On 25th May 2005 the claimant’s daughter wrote to the authority’s Housing Department to inform them that as from September 2005 she would be attending a college course as a full time student and the claimant “has volunteered to let me live with him …”. Receipt of this letter was confirmed in writing in a letter of 11th January 2006 from a Senior Estate Manger in the Housing Department during the course of lengthy correspondence over a discretionary tenancy. This correspondence included letters from the claimant’s wife and from his solicitor. On 1st July 2005 the claimant’s daughter did move in to live with him. 

4. There was also correspondence about the daughter’s status as a student and about her own claim for DWP benefits, as well as correspondence and documentation about a dispute over the claimant’s tenancy, in respect of which Mr Justice Sullivan granted leave to apply for judicial review on 21st November 2006.

5. On 1st August 2006 the authority sent the claimant a review form to ascertain whether he still qualified for the 25% council tax discount. He responded with documents showing that his daughter’s claim for JSA ceased on 29th September 2005, that there had been some delay while a claim for incapacity benefit was being processed and that she was entitled to income support from 18th January 2006. On 10th August 2006 he confirmed to the authority’s Council Tax & Benefit Service that his daughter had been living with him since July 2005. Relevant adjustments were then made to entitlement to the 25% discount and the amount of council tax benefit.

6. On 7th September 2006 the authority decided that as a result of these adjustments there had been a recoverable overpayment of £214.60 housing benefit for the period 4th July 2005 to 22nd January 2006, and excess allowance of council tax benefit of £67.69 for the period 1st July 2005 to 22nd January 2006. Following representations by the claimant’s solicitors relating to the non-dependent deduction while the claimant’s daughter was on receipt of benefit, these amounts were changed to £192.40 and £60.79 respectively. The claimant appealed to the tribunal against these new overpayment decisions made by the authority. As I understand, the actual entitlements are not in dispute.

7. The tribunal considered the matter on 10th May 2007 and confirmed the decisions of the council. There appears to have been no significant dispute on the basic facts and the tribunal identified the issue between the parties as being whether the claimant’s repeated notifications to the authority’s Housing Department were adequate to prevent any overpayment being recoverable. As I explain below, I find this strange because that was not the only or even the main issue, although I agree that it is relevant. 

8. The authority’s position is perhaps best stated in the following extract from a letter of 29th November 2006 from its Benefit Appeals Officer in the Council Tax & Benefit Service to the claimant’s solicitors (I have reproduced it with its original errors):

“Your client did not notified the Housing Benefit and Council Tax Benefit Department that his daughter was residing with him until 9th August 2006. You have enclosed letters to the Local Authority but every single one of these letters is to the Housing Department. This is a separate department. It has a separate address, a separate function and has nothing to do with the Housing Benefit and Council Tax Benefit department.

The onus is not on the Housing Department to notify the Housing Benefit and Council Tax Benefit Department that someone has moved into a Local Authority address. The onus is on the claimant to notify the Housing Benefit and Council Tax Benefit of all relevant changes of circumstances immediately. It clearly states this on all our letters and application forms.”

I note that in this badly written letter even the Benefit Appeals Officer misstates (three times) the name of her Department, which is unfortunate given the tone of the letter and the nature of the dispute.
9. The claimant applied for leave to appeal to the Commissioner against the decisions of the tribunal and leave was granted on 2nd July 2007 by the District Chairman of the tribunal. The council opposes the appeal and supports the decision of the tribunal. 

10. There has been a change in the structure of the regulations but not in their substance, so far as this appeal is concerned. There are similarly worded provisions in sets of regulations concerning housing benefit and council tax benefit. For convenience I refer only to the provisions of The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, but my references are to be taken as also referring to the other applicable regulations.

Overpayment

11. It seems obvious to me that one must start with the provisions for recoverability of overpayments. This is inherent in the appeal and central to the whole issue to be considered. I put it like this because the tribunal did not deal with these provisions but only with the issue of notification. This failure of the tribunal amounted to an error of law, and that is why I have set aside its decision.

12. Regulation 81(1) provides that any overpayment shall be recoverable except one to which regulation 81(2) applies. Regulation 81(2) applies to:

81(2) … an overpayment caused by an official error where the claimant … could not, at the time of receipt of the payment or of any notice relating to that payment, reasonably have been expected to realise that it was an overpayment.

13. So far as is relevant to the present appeal, regulation 81(3) provides that “overpayment caused by an official error” means an overpayment caused by a mistake made, whether in the form of an act or omission by the relevant authority or by an officer or person acting for the authority, but only:

81(3) … 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.  

14. It is only really in the context of these provisions that the question of notification has significance for the recoverability of any overpayment. It must be observed that the rule does not state that any breach of the duty to notify automatically leads to any overpayment being recoverable. 

Notice to the Designated Office

15. So far as is relevant regulation 69(1) provides as follows:

69(1) … if at any time between the making of a claim and a decision being made on it, or during the award of housing benefit, there is a change of circumstances which the claimant … might reasonably be expected to know might affect the claimant’s right to, the amount of or the receipt of housing benefit, [the claimant] shall be under a duty to notify that change of circumstances by giving notice to the designated office …

Regulation 2(1) defines “designated office” as:

2(1) … the office designated by the relevant authority for the receipt of claims to housing benefit

16. As the authority pointed out in its submission to the tribunal, the claim forms stated at page 15:

“While you are getting benefit you must, by law, tell us about any changes in your circumstances which might affect your claim. You will lose benefit if you fail to notify the Council within 1 month of the change.”

I note that there is no reference on this page to any particular department, office, address or telephone number, but only to “us” and “the council”. The form also contains a page headed “Useful information” which states that help in completing the form can be obtained by calling into “the finance reception” on the ground floor of the town hall, or by calling a particular telephone number, or by writing to the “Council Tax and Benefits Service” at a particular address, but this is not referred to as the “designated office” and is not given as either the address to which the form must be returned (the page only saying that the form must be returned to “us”) or the address to which a change of circumstances must be notified. The front page of the form contains a reference to the name of the authority and also the authority’s logo, which includes the name of the authority’s area. Thus, on the face of it, it is reasonable to assume that “us” refers to the authority as a whole.	

17. The tribunal found that the authority could not demonstrate “any wording on the form which makes it clear that this [the Council Tax and Benefits Service] is the office to which changes of circumstances should be notified” but that “on the other hand this is the only address given for dealing with Housing Benefit and Council Tax”. On that basis “it” was the designated office within regulation 2(1).

18. However, that does not really settle the issue. If notification was not made to a designated office, that might in some cases be enough to demonstrate that that the claimant materially contributed to the mistake, act or omission. I do not take that view of the facts in the present case. On the other hand, notification to a designated office does not necessarily mean that the claimant did not materially so contribute, although that is not the issue in the present case.

19. I note that even the tribunal confused the Housing Department with the Social Services Department. I also note the finding of the tribunal that:

“… the Claimant genuinely believed that he had discharged his duty to notify the change and the Claimant’s mistake was understandable …”.

Conclusions

20. As the evidence and facts are agreed, and the tribunal was satisfied that the claimant acted in good faith (a finding that I adopt), I see little point in referring this appeal back to a new tribunal, which would consist of a legally qualified panel member sitting alone. I substitute my own decision based on the facts that I have set out and referred to above. 

21. The repeated failure of the Housing Department to either pass on the relevant information to the Council Tax & Benefit Service, or to advise the claimant to do so, amounted to an official error. It is not reasonable, in view of the confusing nomenclature (such that even the Benefit Appeals Officer got it wrong and the tribunal was confused), the proliferation of correspondence, the repeated notification of the relevant facts to the Housing Department, and the added layer of correspondence and confusion that must have been caused by the judicial review proceedings, to conclude that the claimant materially contributed to the omission that amounted to the official error, even if it is correct that he did not notify the designated office (which I do not really have to decide). In view of the claimant’s daughter’s complicated benefit position (involving three different DWP benefits), the repeated recalculations and adjustments (and as I indicated above, even the first overpayment calculation was incorrect) it cannot be said that the claimant could reasonably have been expected to realise that there was any overpayment.

22. For the above reasons this appeal by the claimant succeeds.

H. Levenson
Commissioner
27th March 2008