England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		11th May 2009

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1. MR JUSTICE HICKINBOTTOM: The claimant, Roger Prince, applies for judicial review of the decision of the Social Security Commissioner, Mr Commissioner Powell, refusing the claimant permission to appeal to a Commissioner from a decision of the Appeals Service Tribunal dated 19 January 2006, permission having been refused by the tribunal itself on 4 May 2006. The tribunal dismissed Mr Prince's appeal against a decision of the second interested party, the London Borough of Southwark ("the Council") that he had been overpaid housing benefit of £963.75 and council tax benefit of £195.34 for the period from 10 June 2002 to 22 February 2004. The claim is brought with the permission of Foskett J.
2. The relevant facts are briefly as follows. In early 2002, Mr Prince was on income-based jobseeker's allowance ("JSA"). On 25 February 2002, he submitted an application to the Council for housing benefit and council tax benefit on the basis that he was on JSA, and he was awarded those benefits. On 8 June 2002, he commenced work for money, but continued in fact to receive JSA from the relevant government department, the Department for Work & Pensions ("the DWP").
3. I will come on to the relevant statutory provisions shortly, but not being in remunerative employment is a condition of any entitlement to JSA. When the DWP realised their error, they wrote to the Council on 5 October 2004, notifying them that Mr Prince was not entitled to JSA from June 2002 to February 2004. They provided Mr Prince's wage slips in support of the fact that he was in remunerative employment. Mr Prince's claims to housing benefit and council tax benefit were then reassessed by the Council and the overpayments calculated in the sums I have indicated.
4. The claimant objected to the assessment of the overpayment and consequently appealed to an Appeals Service Tribunal. He contended that he had been paid JSA during the whole of the relevant period, and that entitled him to housing benefit and council tax benefit by virtue of passport provisions, which entitled a claimant to both benefits if he/she were in receipt of JSA.
5. Unfortunately, as a matter of law, that objection has no foundation. There is no simple passporting provision which means that if a claimant is entitled to, or in receipt of, JSA he is automatically entitled to housing benefit and council tax benefit. Instead, when a claimant is "on" JSA, his income is disregarded for the purposes of housing benefit and council tax benefit (which is, of course, usually sufficient to entitle the claimant to the other two benefits). The regulations making that provision at the relevant time were Regulation 33 of and Paragraph 4 of Schedule 4 to the Housing Benefit (General) Regulations 1987, and Paragraph 4 of Schedule 4 to the Council Tax Benefit (General) Regulations 1992. In respect of the respective regulations for each benefit, there are directly equivalent and identically worded provisions, although with different regulation numbers etc. For ease, I shall merely refer to the provisions relating to housing benefit.
6. The meaning of "on" JSA in this context is dealt with in Regulation 2(3A) of the 1987 Regulations which provided as follows:

"For the purposes of these Regulations a person is on an income-based job seeker's allowance on any day in respect of which an income-based job seeker's allowance is payable to him . . . "

I stress the word "payable". That is the same word used in section 1 of the Jobseekers Act 1995 which sets out the conditions of entitlement to JSA. It is clear from the face of Regulation 2(3A) that, if a claimant wishes to have his/her income capital disregarded for housing benefit purposes, then the test is entitlement to, not payment of, JSA.

7. Section 1 of the 1995 Act sets out the conditions of entitlement to JSA, including (in section 1(2)(b)) that the claimant is "not engaged in remunerative work". That is the provision to which I have already referred.
8. Mr Prince commenced work for money on 8 June 2002. From that date he did not satisfy the conditions for JSA to which thereafter he was not entitled, and from that date his income was therefore not to be disregarded for housing benefit and council tax benefit purposes. It is not relevant that the DWP in fact continued to pay him amounts in respect of JSA. For the reasons I have given, it is entitlement, not payment, that matters.
9. Mr Prince accepted before me today that the only issue between him and the Council was this issue concerning whether payment of or entitlement to JSA was the effective "trigger" for housing benefit and council tax benefit purposes. However, in the event, he raised two further matters during the course of the hearing.
10. First, he submitted that this entire matter has arisen because of an error by the DWP. Although an official error can be a bar on recoverability of an overpayment of housing benefit (see Regulation 99 of the 1987 Regulations) and council tax benefit (see Regulation 84 of the 1992 Regulations), in this case, despite having a personal duty to inform the Council of changes in his circumstances (a duty referred to in the Appeals Service Tribunal's decision: it arose for housing benefit and council tax benefit respectively under Regulation 75 and Regulation 65 of the relevant regulations), he failed to notify the designated office of the Council of his change in circumstances, namely the change with regard to his remunerative employment. Consequently, the reason for the overpayment was overwhelmingly not any error that the DWP may have made, but his failure to comply with his obligation to inform the designated office of the Council. (For completeness, I should say that, although the regulation numbers have changed with successive versions of the housing regulations and council tax regulations, the substance of the regulations concerning recoverability and official error, and the duty of claimants to inform local authorities of changes in circumstance, have not changed in substance since 2001: they are now found in the Housing Benefit Regulations 2006, Regulations 100 and 86 respectively, and their equivalents in the current Council Tax Benefit Regulations.)
11. Secondly, he submitted that even from June 2002 he was never in remunerative employment. However, it is clear that, on the evidence before the Appeals Service Tribunal, the tribunal found that he was. That was clearly a finding open to them to make. No further evidence has been produced to me – or indeed, so far as I am concerned, to anyone else – to the contrary.
12. Those additional arguments, consequently, in my judgment, similarly have no merit.
13. For those reasons, I find that the decision of the tribunal rejecting Mr Prince's appeal was unarguably correct, as was the Commissioner's decision to refuse permission to appeal that decision. Any challenge to the tribunal decision before the Commissioner was, in my judgment, doomed to fail. This application for judicial review is consequently refused.
14. MR PRINCE: The obvious fallacy in that, my Lord, is right at the start where your Lordship says that not being in remunerative employment is a requirement for JSA, which is entirely wrong, in my submission. May I ask for leave to appeal?
15. MR JUSTICE HICKINBOTTOM: On what grounds?
16. MR PRINCE: First, on the ground that the errors in your Lordship's argument are exactly the same as the errors below. On that point, first of all, the whole of your Lordship's judgment is stated on the fallacy that not being in remunerative employment is a requirement of JSA, which is completely wrong.
17. MR JUSTICE HICKINBOTTOM: Any other grounds?
18. MR PRINCE: All the other points follow from that, in that, firstly, there was any separate obligation on me that was not satisfied to report employment to the Council which was not covered by my duty to report it to the DWP. In my submission, that is again completely wrong. Further, that there is no obligation on me to produce documentary evidence of no overpayment. In my submission, that is grossly unfair and unreasonable. If the Council is claiming that there is such documentary evidence, it is up to the Council to get it from the DWP, not for me to chase around Government departments. Those are briefly my points.
19. MR JUSTICE HICKINBOTTOM: I am going to refuse permission, Mr Prince. It seems to me that in respect of the only issue between you and the Council, the law as set out in regulation 2(3A) is clear beyond peradventure. Secondly, the requirement that you are not in remunerative employment as a condition of entitlement to JSA is in section 1 of the Jobseekers Act, and the duty to notify any changes to the designated office arises out of the Housing Benefit Regulations. For those reasons, I do not consider that an appeal stands any real prospect of success.
20. MR SINAI: My Lord, costs. I do not understand Mr Prince to be legally aided. I ask for the costs of the Council for advice and attending today and everything in the sum of £1,500.
21. MR JUSTICE HICKINBOTTOM: Do you have a schedule of costs?
22. MR SINAI: No, my Lord. Otherwise to be assessed if not agreed, but that prolongs the matter further.
23. MR JUSTICE HICKINBOTTOM: Why was a schedule not served?
24. MR SINAI: My Lord, I will have to take instructions. I am told because the Council are only seeking my costs of the hearing.
25. MR JUSTICE HICKINBOTTOM: You are still bound to serve a schedule.
26. MR SINAI: Quite.
27. MR JUSTICE HICKINBOTTOM: I appreciate that this may not have been your personal fault, but the grounds were only served on Friday.
28. 2MR SINAI: Yes.
29. MR JUSTICE HICKINBOTTOM: I am not going to make an order for costs. Of course, in the usual event a losing party pays a successful party's costs. But in this case, first, the Council were late in serving their representations, and secondly, and vitally, no schedule of costs confirming the level of costs has been served or filed. Given the circumstances of this case, I do not consider it is appropriate to give the Council further time either to serve a schedule or to have their costs subject to a detailed assessment. No order for costs.
30. MR PRINCE: I am very grateful for that at least, my Lord.