IN THE UPPER TRIBUNAL	Appeal No.  CH/3826/2008
ADMINISTRATIVE APPEALS CHAMBER

Before Deputy Upper Tribunal Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I substitute my own decision dismissing the appeal of the claimant from the decision of the Middlesbrough Council dated 14 March 2008.

REASONS FOR DECISION

1.	The Applicant has been in receipt of housing benefit and council tax benefit from Middlesbrough Council (“the council”) since 26 August 2002.  In February 2008, he learned that he was to receive an occupational pension from Cleveland County Council, and was paid two lump sums in respect of that pension.  One was a retirement grant with accrued interest, the total sum received being £6313.17 and the other was arrears of monthly pension payments from 1 July 2000 together with accrued interest (but less tax).  This totalled gross £7899.04, and the actual payment, net of tax, was £6200.  The figures do not appear to be in dispute, but if they are then this decision should not be taken as precluding the claimant from asking the council to review them.

2.	The Applicant informed the council’s housing and council tax departments of these receipts, and the council recalculated the housing benefit and council tax benefit to which the claimant was entitled, going back to 26 August 2002.  It did this by taking the payment in respect of monthly arrears from 26 August 2002 and apportioning it to each month from that time in accordance with regulation 79(6) and (7) of the Housing Benefit Regulations 2006 and regulation 67(8) and (9) of the Council Tax Benefit Regulations 2006.  Again there does not appear to be any issue as to the way in which this has been done.  The council has then sought to recover the resulting overpayments from the claimant.  

3.	There is no dispute that the claimant has at all times acted properly and is not at fault in any way in relation to this matter.

4.	The overpayments and excess council tax benefit are recoverable under regulation 100(1) of the Housing Benefit Regulations 2006 and under regulation 83(1) of the Council Tax Benefit Regulations 2006 unless regulations 100(2) and 83(2) respectively of those regulations apply.  These make irrecoverable overpayments or benefit which arose in consequence of official error where the claimant could not have been expected to realise, when the payment or benefit was received, that there was an overpayment.  There does not appear to be any dispute that the claimant could not have been expected to realise at the relevant times between August 2002 and February 2008 that they were overpayments.  

5.	The issue is whether they were in consequence of an official error.  This would not normally arise, because the pension provider and the local authority providing the benefits would not normally be the same.  Here, however, it is said that they were the same, or at least that, to use the words of regulations 100(3) and 83(3) of the two sets of regulations “there was an overpayment caused by a mistake made whether in the form of an act or omission by – (a) the relevant authority; (b) an officer or person acting for that authority…”. It is also said that there was a mistake made by the council or an officer or person acting for the council which led to the pension payments not being made until February 2008.

6.	What is said is that the claimant’s pension was payable by Teesside Pension Fund (“the fund”), which was administered by the council.  The claimant had asked the fund to release his pension on numerous occasions.  He had never asked for it to be deferred – this had always been done on the instructions of the fund.  In January 2004 he had been asked by the fund to attend a medical with a Dr. Orlandi (on behalf of the council) with a view to getting his deferred pension released.  Dr. Orlandi had failed to issue the claimant with a certificate of ill health and as a result his pension was deferred again by the council.  It is even, and somewhat confusingly stated that it was as a result of Dr. Orlandi’s medical opinion that the pension was not released in 2000 – it is plainly impossible that an act or omission in January 2004 could have had this effect.

7.	The claimant was then surprised to be invited to attend another medical in 2007 with a Dr. Robinson, who was of the opinion that a certificate of ill health should be awarded back to 2000.  This appears to have led to the release of the pension in February 2008.

8.	The tribunal concluded that there was a mistake, identified as failure to pay the pension monies from July 2000 due to, amongst other things, an inaccurate medical assessment and its acceptance by the pension authority, “caused by the act/omission of [the council] or an officer or person acting on behalf of [the council], which led to the creation of the overpayment”.

9.	Even if Dr. Orlandi was acting on behalf of the council in January 2004 and if she made a mistake, that cannot have caused anything that occurred before that time.   I am also unable to identify from the facts before the tribunal or before me any basis on which it could be said that the failure to pay the pension before January 2004 was a mistake – this would depend on the terms on which the pension was payable as to which there is no evidence and upon proof that the council had in some way made a mistake as to those terms in deciding, through the agency of the fund, not to pay the pension.   Further, there is no evidence that the council, or the fund, made a mistake on receipt of Dr. Orlandi’s report.  That again will depend on what it was required to do on receipt of that report.

10.	Whether Dr. Orlandi’s report or her failure to furnish the certificate amounted to a mistake must depend not just on the state of the claimant’s health but also on what instructions were given to her, and upon whether she complied with the instructions.  It is not a mistake to fail to provide the certificate just because Dr. Robinson subsequently furnished one.  She may have had good reason not to provide such a certificate.  She may have been right in her medical assessment, and Dr. Robinson wrong, or there may have been room for two views, neither of which can sensibly be said to have been a mistake.

11.	For the reasons given above, there was no satisfactory evidence of any mistake on the part of the council before the tribunal.  On the other hand, the council could have been expected to disclose the relevant records showing what the provisions for the claimant’s pension were, the basis on which a deferred pension was payable, and the reasons, including any surviving medical report from 2004, why the pension had been deferred until 2008, when it was awarded and backdated to 2000.  Had the matter rested there, I would have remitted the case to a new tribunal to investigate and determine whether there had been a mistake on the part of the council or an officer or a person acting for the council.

12.	However, it does not appear to me that the matter does rest there.  The question arises here solely because the council happened to be responsible for the claimant’s pension through the fund, which was administered on its behalf.  If any other body (other than the DWP and HMRC which are specifically included in regulation 100(3)) had been responsible for the pension, including some other local authority, any mistake on that body’s part could not have affected the claimant’s liability to repay the overpayment.  To construe regulation 100(3) in this way is to produce a very odd result which would put one small class of claimants in a better position than anybody else for no very good reason.

13.	Regulation 100(3) of the Housing Benefit Regulations 2006 and regulation 83(3) of the Council Tax Benefit Regulations 2006 in fact refers to the relevant authority or a person acting for that authority “acting as such”.  “Relevant authority” means an authority administering housing benefit (see regulation 2 of the Housing Benefit Regulations) or council tax benefit (regulation 2 of the Council Tax Benefit Regulations).  It appears to me, giving a purposive construction to these provisions, that the official error must have been in the context of the performance of the council’s duties in relation to the relevant benefit.  It does not cover mistakes made as, for example, a pension provider or an employer.

14.	For that reason, it appears to me that even if the claimant were to succeed in showing that there had been a mistake by the council or somebody on its behalf in dealing with his pension entitlement, that would not be an official error for the purposes of those regulations.  

Michael Mark
Deputy Upper Tribunal Judge
30 April 2009