CH/2583/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the Sutton appeal tribunal dated 23 March 2007 is erroneous in law.  I set it aside and give the decision that the appeal tribunal ought to have given, which is identical to the decision that the tribunal gave.  It is that an overpayment of housing benefit for the period from 23 to 27 August 2006 inclusive is recoverable from the respondent landlords. 

REASONS

1.	This is an appeal by a local authority against a decision of a tribunal which partially upheld an appeal by landlords against a decision that an overpayment of housing benefit (HB) was recoverable from them.
2.	The tenant in question had been a tenant of the landlords for some time.  HB was paid directly to them, four-weekly in arrears.  In July 2006 (for reasons that are not stated in the papers and do not matter) the landlords obtained an order for possession of the premises by 3 August 2006 and a warrant of execution was due to be enforced by a bailiff on 12 September (pages 27 and 28).
3.	On 18 August the local authority received notice from the tenant to the effect that she had moved out of the tenancy address on 14 August (page 6).  It appears that she made a fresh claim for HB at a new address and, in a letter received by the local authority on 14 August, asked for HB to be paid directly to her new landlord (page 2).  Despite this, the local authority notified the old landlords by letter dated 23 August that HB for the four weeks to 27 August would be paid to them by BACS transfer on 29 August (page 9A).  
4.	On 6 October the local authority notified the landlords that there had been an overpayment of HB in respect of the period from 14 August to 27 August, and that it was recoverable, and demanded it from them (pages 13-14) and also notified the tenant that the same overpayment was recoverable and demanded it from her (page 16).  The landlords appealed against the notification to them, saying that the tenant only returned the keys on 23 August and was liable for rent up to that date; any overpayment should be recovered from the tenant (page 17).  In a telephone conversation the claimant told the local authority that she moved out on 14 August and told the landlords of this and returned the keys on 16 August (page 18).
5.	On 8 November the local authority’s benefit appeals officer wrote to the landlords saying again that there was an overpayment in respect of the 14-27 August period, that it was caused by official error as the information that the tenant was moving had been received by the local authority on 14 August, but that the landlords ought reasonably to have realised that they were being overpaid as the tenant moved out on 13 August; the letter went on to say that the local authority had decided to recover the overpayment from the landlords, but nevertheless requested further information about when the tenant had told them that she was moving out (pages 19-20); another letter of the same date said that the local authority had decided that the overpayment was recoverable from the landlords and the tenant, but that the local authority had decided to recover it from the landlords (pages 21-22).  On the same date the appeals officer also wrote to the tenant asking her for information about the date of her move and of her telling the landlords (page 23), as well as notifying her that the overpayment was recoverable from her and the landlords but that the local authority had decided to recover it from the landlords (pages 24-25).
6.	It is unfortunate that the letters of 6 October not only told both parties that the overpayment was recoverable, but also demanded it, from both of them.  The various letters of 8 November were ambiguous as to whether they contained a decision to pursue recovery against the landlord or were seeking further information with  a view to a decision to be taken later.  Both of these things were unfortunate – and best avoided in future – but have not had any lasting effect on the appeal.
7.	The landlords wrote a letter of appeal reiterating that the tenant had merely posted the keys, which were received on 23 August (page 26).  The tenant wrote to the local authority saying that she had received the key to her new address on 12 August, moved her belongings over the period from 12 to 14 August and put the key and a note through the landlords’ door on the night of 14 August.  She said she went back later to collect mail and found builders working in her old flat, and added that a new tenant signed a tenancy agreement and moved in on 24 August (pages 31-32).  She produced evidence that she had entered into a tenancy agreement at her new address on 14 August (pages 34-36).
8.	The local authority appeals officer wrote again to the landlords, reiterating that the tenant had not been entitled to HB at the tenancy address from 14 August and informing the landlords of their right of appeal (pages 37-39).  The landlords replied saying they wished to appeal on the grounds that the key was only returned on 23 August; they accepted that HB was recoverable from 23-27 August (page 40).  Another benefit appeals officer wrote on 22 January 2007 upholding the decision (pages 42-43).
9.	The appeal came before a tribunal on 23 March 2007.  One of the landlords appeared, as did a representative of the local authority.  The tribunal allowed the landlords’ appeal in part, holding that there was an overpayment from 23 to 27 August that was recoverable from the landlords.  It gave some reasons in the decision notice (page 67), amplified in the statement of reasons (page 69).  
10.	In short, the tribunal found that the landlord was entitled to be believed when he said he had received the keys on 23 August.  The tenant was ‘probably the only person able to say when she vacated, but she was not at the hearing to give oral evidence.  The Tribunal was aware that it might be to her advantage to state that she vacated on 14.8.06 rather than 23.08.06, which is the date [the landlord] was sure the keys were received by him’.  It went on to note that ‘the date of return of the keys is not necessarily the date that the property was vacated, but as the Tribunal accepted [the landlord’s] evidence, it put in doubt [the tenant’s] statement that she dropped the keys off on 14.08.06’.  The statement of reasons adds a finding that the tenant took a tenancy of the new property from 14 August.
11.	The local authority appeals with the leave of a commissioner.  Its grounds of appeal are, in short, that the tribunal failed to give adequate reasons ‘as to why it has amended the tenant’s dates of occupation when this was not an issue in the original appeal’, and had failed to explain why it rejected the tenant’s evidence in favour of that of the landlord.
12.	The landlords have commented on the appeal (pages 81-82 and 97-99); they reiterated that the tenant had returned the keys on 23 August; they had been able to re-let the property immediately as they had a waiting list of tenants; it was in the tenant’s interest to claim that she had returned the keys on 14 August; the landlords’ office was open until 7 p.m. and the tenant could have returned the keys in person and obtained a receipt.  They asked for an oral hearing before the commissioner in order that they could present their case in person.  The local authority has responded (page 100), reiterating earlier submissions.
13.	I have not granted the request for an oral hearing because I have been able to determine the appeal – upholding the tribunal’s decision in the landlords’ favour – without requiring further submissions from them.  The local authority did not ask for an oral hearing. 
14.	 I do not agree with the local authority that the tenant’s dates of occupation were not an issue in the appeal.  The appeal was against a composite decision that there had been an overpayment and that it was recoverable; the landlord’s evidence about the date of return of the keys raised an issue about the date of the tenant’s departure that the tribunal was empowered to consider under section 12(8)(a) of the Social Security Act 1998.  I find that the tribunal has adequately explained its decision to prefer the landlords’ evidence as to the date of return of the keys over that of the tenant: it was that one of the landlords had given oral evidence as to it, which the tribunal had found deserving of belief.
15.	Where I find that the tribunal erred is that it failed to state a conclusion on the question that it had set out to decide, namely on what date the tenant had ceased to be entitled to HB in respect of the tenancy address.  I sympathise with the tribunal: acceptance of the evidence that the keys had not been returned until 23 August left it uncertain whether the tenant had (as she claimed) removed her possessions between 12 and 14 August and had then delayed in returning the keys, whether the process which she described - of removing her possessions and returning the key over a three day period - had in fact taken place between 21 and 23 August, or whether that process had in fact taken place at some point between the two dates.  Nevertheless, it was incumbent on the tribunal to reach – and explain – a decision on the crucial question of when HB entitlement in respect of the tenancy address ceased.
16.	I consider that I am in as good a position as the tribunal to reach a decision on that question.  In reaching that decision I first direct myself that a tribunal (or a commissioner taking the decision that the tribunal ought to have taken) in an overpayment case has to be positively satisfied – on the balance of probabilities – that an overpayment of a particular amount has been made.  
17.	Secondly, I note that the tenant’s account of receiving her new key on 12 August and moving her possessions between then and 14 August is inconsistent with her new tenancy only commencing on 14 August (see page 34); I find it unlikely, on the balance of probabilities, that the new landlord let the tenant into possession before she entered into her new shorthold tenancy.  Her written account is also inconsistent with what she is recorded as having said on the telephone (page 18).  I therefore reject the tenant’s account of moving as early as she says.  I accept that the tenant had possession of her new home on and from 14 August, and that she notified the local authority on that date; but that does not establish that she began to occupy it as her home on that date.  
18.	Thirdly, I accept the landlords’ evidence of receiving the keys on 23 August; I do so because the tribunal, having seen and heard one of them, found his evidence credible and deserving of belief.  Fourthly, I find that the tenant was not eligible for HB at the tenancy address from 23 August; I so find because the landlords have accepted it  (paragraph 8 above)
19.	That leaves me unable to be satisfied that the tenant ceased to be eligible for HB at the tenancy address any earlier than 23 August; she may have ceased to occupy it as her home on an earlier date but, if so, what that date was is a matter of pure speculation.  I am satisfied that the tenant ceased to occupy the tenancy address as her home by a date not later than 23 August and that there was an overpayment of HB in respect of the period from 23 to 28 August inclusive.
20.	That overpayment is recoverable.  I agree with the local authority that it was caused by an official error to which the tenant did not contribute; I do not need to decide whether the landlords contributed to it because I find that, on receiving the payment on or after 29 August (see paragraph 3 above), the landlords will have been in a position to know that it was an overpayment, since it ran up to 28 August.  
21.	I also direct (in a similar manner to the tribunal but pursuant to regulation 20 of the Social Security Commissioners (Procedure) Regulations 1999) that the local authority calculate the amount of the overpayment and communicate it to the landlords within 14 days of this decision being sent to them, and I direct the landlords to make written observations to me on the calculation, if they dispute it, within 28 days of the decision being sent to them.  In that event, I shall give further directions.

	(signed on the original)	Nicholas Paines QC
		Deputy Commissioner
		1 July 2008