England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 November 2009

Judge Anthony Thornton QC:

Introduction

1. Mr Peter Joseph is a tenant of the London Borough of Newham ("Newham") and he applies for the judicial review of a decision taken by one of Newham's Visiting and Investigations Officer's dated 3 August 2007. That decision was that a debt owed by Mr Joseph to Newham of £895.28 should be treated as a property-related debt within paragraph 3.2.2 of Newham's Housing Allocation Policy set out in its Choice Based Scheme. Mr Joseph is registered with Newham's choice-based letting scheme. Unless and until Newham cease to treat this debt as a property-related debt under the scheme, whether by it being written off, paid, ceasing to be a debt through limitation or lapse of time or by discretionary waiver of the operation of the rule, Mr Joseph will be severely disadvantaged in bidding for accommodation under the scheme because, as the decision states, it is not the policy of Newham to make offers to applicants who owe property-related debts.
2. Mr Joseph maintains that:

(1) He does not owe Newham the monetary debt in question;

(2) In any event, the debt is now statute-barred and is therefore no longer within the ambit of paragraph 3.2.2; and

(3) Newham's decision to treat the debt as a property-related debt is irrational and unreasonable since it was taken without considering or applying its discretionary power to relax the applicability of paragraph 3.2.2.

The decision is therefore irrational or unreasonable and it should be quashed. Mr Joseph also seeks an appropriate declaration that the relevant debt is not a debt within the meaning of "property-related debt" in paragraph 3.2.2.

3. The value of the dispute appears to be somewhat below the threshold normally associated with judicial review. However, it has fundamental importance to Mr Joseph, his partner and younger child because they are effectively unable to bid for desperately needed larger council accommodation. At present, this family unit of three is occupying a one-bedroom flat and they have been assessed as a priority preference for two-bedroom accommodation under Newham's housing allocation scheme but are unable to bid successfully for such accommodation whilst they are registered as owing Newham this property-related debt. Mr Joseph is not prepared to meet the debt, partly as a matter of principle and partly because he says there is no guarantee that he can resume effective bidding even if he does repay it. Newham, meanwhile, regard the dispute as raising an important point of policy under the housing allocation policy, namely whether it should be required to relax what it regards as a rule of considerable importance, namely the policy rule requiring it to give less priority to applicants than they would otherwise be granted when bidding for accommodation if they have a property-related debt with Newham.
4. It is the latest in a long-running series of disputes that go back to September 1999 and these disputes have already been the subject of a previous application for judicial review for which permission was refused at an oral hearing by Holman J on 10 May 2007. Permission for this second judicial review, started on 2 November 2007, was refused on paper by Owen J on 15 April 2008 but was granted at a renewed application by Stadlen J who considered that it was arguable that a debt that had become statute-barred or about which there remained substantial dispute was not reasonably one that should fall within the category of property-related debts.
5. In order to decide the issue at stake, which is within a narrow compass, it is necessary to consider the long historical features of the dispute as to the existence, size and character of the debt. Having done so, it will be necessary to analyse that background in order to identify whether there is a judicially reviewable act or omission or policy of Newham, and if so what that is, whether relief is now barred by time or by the relevant issue having been finally concluded in the earlier judicial review proceedings or by other dispute resolution procedures that have previously been used in attempts to resolve the dispute. This is in part because Newham, and Owen J in refusing permission, considered that this application is in essence a further attempt by Mr Joseph to challenge Newham's decision made in May 1999 to seek repayment of overpaid housing benefit as well as attempt to re-argue the dismissal of the application for permission in the previous judicial review by Holman J.

Factual background

6. The original overpayment dispute. Mr Joseph has been a sole secure tenant of Newham since 1992 in the same one-bedroom flat. He has lived there with his wife and they have two children. The elder child, Rory, is now eighteen and still lives with his parents. The younger child, Shade is aged six. Thus, for many years, the family home has been too small and they live in over-crowded conditions. As a result, in 2001, Mr Joseph registered with Newham's then points-based letting scheme for a three-bedroom property. This registration was transferred to the newly created choice-based letting scheme in 2002 and has been assessed with needs for a two-bedroom property and as being entitled to reasonable preference in the allocation of property.
7. Mr Joseph was entitled to, and in receipt of, Housing Benefit ("HB") from Newham for several years before the disputed debt was incurred. The period during which Mr Joseph was alleged to have been overpaid HB was between 21 September 1998 and 4 April 1999. He has refused to repay this overpayment because he has always contended that no overpayment had occurred. The non-repayment of the sum in question gives rise to the property-related debt with which this judicial review is concerned.
8. The original dispute as to the overpayment arose in this way. In 1999, with the encouragement of his employer, Mr Joseph had enrolled as a full-time student at the University of North London for the DipHE and, for the academic year 1998 – 1999, he was awarded a further education award. Mr Joseph ceased work before the academic year started and, in consequence claimed and received Jobseekers Allowance ("JSA") from 24 August 1998. This allowance was paid in addition to HB. However, HB was not payable to full time students who were in receipt of a student grant. Mr Joseph's academic year started on 21 September 1998 and his entitlement to HB stopped then. However, there was a delay in his receiving the first tranche of his student grant and he continued to claim and be paid JSA up to the point when he started to be paid his grant on 25 October 1998. Meanwhile, HB was paid on his behalf throughout that period and up to 4 April 1999 when it was stopped. He was not in fact entitled to HB for any part of the academic year and Newham concluded that the HB payments for which he had been given credit for the period in question should be repaid. The calculated total overpayment was £1,335.28 and Mr Joseph was notified by an "Overpayment of Housing Benefit" notification of that sum and of his obligation to repay it in a notification dated 4 May 1999. The current outstanding sum of £895.25 founding the alleged property-related debt that is now a central feature of this judicial review is part of that claimed overpayment, the balance having been paid off previously.
9. Mr Joseph has always disputed that he was overpaid HB. The issue from the start was whether the overpayment arose from his failure to inform Newham that he was a student or that he was in receipt of a student grant, as Newham has always contended, or because of a mistake within Newham's HB office in paying it, as Mr Joseph has always contended. Mr Joseph has always maintained that he filled out an HB claim form and returned it on 29 September 1998 having clearly stated in the relevant section 6 that he was a fulltime student. A copy of the completed form supplied to the court shows this quite clearly. What the form also showed, in a different section, was that Mr Joseph was getting JSA and had been getting it since 1 September 1998. He had ticked and filled out that part of the form as well. Mr Joseph also claimed that he sent Newham a letter dated 11 October 1998 in which he informed the council that he had applied for and had been granted a position as a student. He also stated in this letter that he was currently unemployed and had no other income save for his student grant. The letter asked the HB section to whom it was addressed to update his file and to inform him how much housing benefit he was entitled to. Mr Joseph produced to the court his copy of the letter he says he sent to Newham. Newham has never found this letter on its files, did not respond to it and has always contended that it never received it. Mr Joseph, on his part, did not chase Newham for an answer.
10. The claim was put forward by Newham in its original claim sent to Mr Joseph on 4 May 1999 as follows:

"I have worked out that we have paid you too much Housing Benefit. You have been overpaid for 33 weeks from 21 September 98 to 09 May 99. … The reason we overpaid you is that you did not inform us about your grant and your student status when we assessed your housing benefits."

11. Mr Joseph has always maintained that he did tell Newham about his student status in that he filled in the form and sent a letter which, even if it did not arrive, showed that there had been no failure on his part to notify Newham. Newham do not accept that any mistake was made by its HB payment officials notwithstanding that Mr Joseph's HB application form clearly states that Mr Joseph was a full time student. Newham has always maintained that Mr Joseph filled out the JSA part of the form as well (which it is clear that he did) and, because he has also signed on as unemployed until 25 October 1998 (a fact Newham obtained from the relevant Benefits Office) and had claimed JSA, he was reasonably to be taken to be representing himself as being unemployed and entitled to HB rather than representing himself as a full time student since students were not entitled to HB or JSA. Mr Joseph's riposte to that was that he was only claiming JSA for the month that he was not being paid his student grant. He had started to claim and be paid JSA when he first became unemployed on 24 August 1999 and he was entitled to, and did, continue to claim JSA in the short period during which he was both a student and without any income. He did continue to sign on for JSA, but only in the period before his student grant started to come through.
12. There are, therefore, clearly two sides to this dispute. On Mr Joseph's side is the fact that the HB claim form clearly identified him as a student in Part 6 and, as it would appear, he did send a letter notifying the HB section of Newham that he was a student in receipt of a full grant. On Newham's side, it is pointed out that he filled in the JSA section of the form in Part 5 and it also pointed to the statutory duty imposed on Mr Joseph to notify any overpayment of benefits to which he was not entitled which he had not complied with. Finally, he could only avoid his obligation to repay the overpayment if he could show that the overpayment occurred through an official mistake and no such mistake occurred. It could also be said that Mr Joseph could and should have chased up the lack of a response to his letter of 11 October 1998 and that, not having done this, he remained responsible for any overpayment.
13. The dispute has never changed its character despite it being waged backwards and forwards for many yeas. What is clear about this dispute, however, is that Newham's entitlement to recover the overpayment was not based on any allegation of dishonesty, misrepresentation, deliberate over-claiming or evasive failure to notify an overpayment. The obligation to repay arises purely from an obligation to repay any overpayment of HB. Such an obligation arises for any overpayment unless an official mistake by Newham was the sole cause of the overpayment. Whether or not Mr Joseph is correct in continuing to assert that there was such a mistake, it is now too late for him or anyone else to proceed on any other basis than that he did have an obligation to repay overpaid HB that was crystallised by Newham's letter of 4 May 1999.
14. Claim and dispute resolution. In 1999, if an overpayment repayment demand was made in relation to statutory benefits, there was a statutory appeal procedure. The claim dated 4 May 1999 informed Mr Joseph that he could appeal within six weeks of the letter. Newham subsequently notified Mr Joseph on 2 October 1999 that he had a further four weeks in which to appeal. Mr Joseph did not do so. Much later, in September 2003, Mr Joseph did attempt to lodge an appeal with the relevant body dealing with HB appeals, the Department of Work and Pensions Appeal Service, but that body declined to extend time for lodging the appeal, then nearly three years late, and that avenue of dispute resolution closed. The effect of the notification coupled with the absence of an appeal crystallised the debt. This was recorded in a separate sub-account to Mr Joseph's rent account and Mr Joseph started to pay money into that sub-account at some stage and, thereby, started to reduce the debt but he stopped making payments in 2002, leaving the debt at the sum in which it still stands, albeit that that debt is now statute-barred. Mr Joseph informed me that he stopped making payments because he had been informed by an official in Newham's Housing Allocation department that even if he paid off the debt he still would not get allocated a larger flat. Even if something along those lines was said, it is obviously without foundation and it does not provide any basis for his not paying off the balance of the debt, if and to the extend that it is still recoverable.
15. Mr Joseph then turned to Newham's complaints procedure. Mr Joseph made a complaint which was dealt with at the first stage of this procedure. The essence of his complaint was that he was wrongly being required to repay allegedly overpaid housing benefit. This complaint was investigated and responded to by dismissing the complaint on about 20 September 2002. He then complained through the second stage of the procedure and this stage dismissed his complaint by a letter dated 15 October 2002. Mr Joseph then complained to the Local Government Ombudsman who, by a letter dated 30 May 2003, declined to investigate his complaint any further. There then followed a series of letters and representations involving the Head of Benefits, the Director of Housing, the Rent Service Manager, the Legal Services Department, the Divisional Director and the Mayor. Newham's line remained constant: HB was overpaid, the overpayment arose because Mr Joseph, whilst a student, claimed and received HB, these payments did not arise from any mistake by Newham and Mr Joseph had the obligation to notify Newham that he was being overpaid. In consequence he now had to repay the overpaid sum. The Divisional Director, in about February 2006, informed Mr Joseph that he could not justify writing off the overpayment as a gesture of goodwill.
16. Mr Joseph then initiated a judicial review claim and was refused permission at both the paper and oral stages of the application process. Permission was refused because Holman J concluded that the essence of the claim was that judicial review was sought to review a decision not to grant Mr Joseph a tenancy because of his non-payment of the outstanding debt. However, the last occasion on which such a decision had, or might have, taken place was in 2003, some four years previously. Insofar as the judicial review being sought was of the decision to seek repayment of the debt, that claim was even more out of time since the decision had been made in May 1999. Holman J therefore refused permission but concluded his judgment with these prescient words:

"… if [Mr and Mrs Joseph] wish, they may make a new bid for some alternative property when one is advertised. At that point, Newham will have to make a decision as to whether or not to grant him that property. If they decide not to do so, then it may (I stress) be open to him to apply for judicial review of their reasons if (I stress) those reasons are susceptible to review."

17. Mr Joseph has, since that decision, bid for a number of properties. The procedure involves Newham advertising available properties and anyone registered with the choice-based scheme may bid for these properties so long as their assessed needs are for the size of property in question. Once the bids are received, they are sorted so as to identify those who have been registered the longest. Priority is given to those, such as Mr Joseph, who have a priority, in his case living in overcrowded accommodation. Offers are then made to those who have been longest registered with priority. However, if a bidder would otherwise be successful, but he or she has a housing-related debt, the officer concerned with allocation has a discretion to offer the property to someone with less priority without such a debt. This discretion is, evidently, usually, but not invariably, exercised. The Lettings Agency Manager explained that Mr Joseph had now been registered for so long that he is now nearing the top of the list of bidders and has on occasion had sufficient priority that he might have been offered a property. On 30 July 2007 he did reach the top of the queue but because of his property-related debt, he was by-passed. It was that by-passing decision that led to the determination now being challenged.
18. Enforcement procedures. There are three separate ways that Newham could have enforced payment of a debt created by a demand for repayment of overpaid HB and other prescribed benefits. It is first necessary to notice that the current debt that is still maintained by Newham is, strictly speaking, not an obligation to repay a series of overpayments of HB but an obligation to pay a lump sum representing a series of overpayments and that that payment obligation was created by a HB statutory demand for repayment. In Mr Joeph's case, the debt was created by Newham's notice dated 4 May 1999 and there is, therefore, one debt for £1,335.28 which accrued due on 4 May 1999.
19. Mr Jordan's payment or repayment obligation. At the time the debt crystallised, the payment and overpayment regime was to be found in the Social Security and Administration Act 1992 and the Housing Benefit (General) Regulations (SI 1987/1971). The Regulations have, since 2006, been replaced by the Housing Benefit Regulations 2006 which has resulted in a somewhat different disputes procedure if a claimant such as Mr Joseph wishes to dispute a local authority claim for payment of overpaid HB.
20. In relation to Mr Joseph's obligation to repay, there were whilst any cause of action relating to the debt was not statute-barred, four separate ways that Newham could have recovered the debt.

(1) County Court execution. A debt created by the service of a demand and the use of the procedure provided for by the Housing Benefit (General) Regulations 1987 could have been recovered through the county court execution process without the need to obtain a judgment first. This method of recovery was only available if the overpayment had been made in consequence of fraud, misrepresentation or a failure to disclose by Mr Joseph (section 71(1) of the SSAA). The only basis for using this procedure in this case would have been the alleged failure by Mr Joseph to inform Newham about his student status and grant. Had Newham used this procedure, Mr Joseph could have challenged its use and might well have been able to secure a trial as to whether the debt was due or not. If a trial took place, he could have defended the claim on its merits and sought to establish that he was not liable to repay anything. By virtue of section 71(10)(a) of the Social Security Administration Act 1992 and section 9(1) of the Limitation Act 1980, the debt, being recovered by virtue of a statute, could only have been recovered by action (i.e. by being registered with the county court) witin six years from the accrual of the debt. In other words, this method of recovery cannot be used if the registration occurred more than six years after the statutory demand for the debt, in Mr Joseph's case more than six years after 4 May 1999.

(2) County Court action. Newham could have sued Mr Joseph in the county court and proved the overpayment and have obtained a judgment from the court for whatever part of the overpayment it could establish was legally due from Mr Joseph. It could then have enforced recovery of that judgment in the usual way. The debt would only have been recoverable for a period of six years from November 1998.

(3) Benefit deduction. Where the sum to be recovered from an overpaid recipient of housing benefit has been quantified and then claimed in the manner prescribed by the Housing Benefit (General) Regulations 1987, the sum so quantified, described as a recoverable overpayment, may be recovered by way of deduction from any HB to which that person is entitled to. This is provided for by section 75 (4) of the SSAA 1992. I deal below with whether this method of deduction is subject to a time limit for its use.

(4) Housing allocation scheme. As an extra-statutory method of compelling payment, many housing allocation schemes, including Newham's scheme, provide that where there is an unpaid debt relating to overpaid HB and other property-related debts such as rent arrears, that debt might result in the applicant being given less priority than other applicants.

Newham's Relevant Policies

21. Newham have three policies that must be considered:

(1) County court enforcement. It was explained by Mrs Gillian Jones, a local government officer employed by Newham, that Newham has a policy of not invariably using the county court to recover outstanding debts. Evidently, a cost benefit decision is taken on a case-by-case basis as to whether the sum being recovered, in relation to the costs that would be incurred in recovering it, justifies the use of the county court enforcement procedures. This policy was confirmed by the Head of Legal Services in a letter to Mr Joseph on 21 July 2006. He stated that the council uses its discretion as to whether to use the courts for debt recovery purposes. It was not clear how extensive this non-use of the courts is. No attempt was made to register Mr Joseph's debt even though no appreciable cost would have been involved since all that would have been needed was to enter the debt in the appropriate way at the county court office. It seems likely that Newham do not, except possibly in very rare circumstances, use the court for debt enforcement purposes.

(2) Debt write-off policy. Newham's adopted debt write-off policy provides for debt write-off in defined circumstances. The stated circumstances include debts that have become statute barred or are uneconomic to collect. A write-off will not normally be considered unless the account is closed and the debt will not be written-off unless all reasonable steps have been taken to collect it and no further action is possible or practicable. In deciding whether to write-off, Newham will take into account the age, size and type of debt together with all other factors that it feels are relevant to the individual case.

(3) Housing allocation policy. Newham's housing allocation policy was drafted taking the ministerial Code of Guidance into account. The Code provides that in determining priorities, the allocation policy can make provision, in determining priorities, for bad behaviour to be taken into account. The provision reads:

"Bad behaviour would include unacceptable behaviour which was not serious enough to justify a decision to treat the applicant as ineligible, or to give him no preference for an allocation, but which could be taken into account in assessing the level of priority which was deserved relative to other applicants. An example could be minor rent arrears." (paragraph 5.23)

The policy itself provides:

"Other situations where applicants may be given less (or no) priority

3.2.2 Applicants who owe the Council money

Applicants who have any property-related debts (such as rent arrears, council tax arrears or a housing benefit overpayment) to the Council, either relating to their existing home or a former home, are normally given less priority than other applicants when being considered for offers of accommodation, or when being considered for a nomination to a Registered Social Landlord for housing, until such time as they clear all debts owed."

Statute-barred debt

22. The first issue I must decide, and the principal issue, is whether "any property-related debts … such as housing benefit overpayment" in Newham's housing allocation policy includes housing benefit overpayment debts that are statute-barred. The debt that I am concerned with is that referred to in the decision being challenged which is set out on the headed notepaper of the Housing & Public Protection section of Newham and reads:

"Dear Mr Joseph

Friday 03 August 2007

Housing Application: Property-Related debt

Following our recent check on your application, it has been noted that you have a property-related debt of £895.28 Housing Benefits Overpayment.

It is the policy of this Council not to make offers to applicants who owe property-related debts.

…

If you are not happy with this decision, you have the right of review through the Council's "Comments and Complaints procedure. …"

23. Mr Joseph did not invoke the Comments and Complaints procedure but his many dealings with the Council in relation to this debt dispute have been such that it can fairly be said that he has now exhausted his remedies and judicial review of this decision can fairly be said to be his last remaining option to challenge the impasse created by this decision.
24. Mr Joseph contends that it is irrational of Newham to seek to penalise him using this provision in relation to a debt that is now statute-barred. In context, the provision must be referring to statute-barred debts and, if it is not, the policy is irrational. Ms Desirée Artesi, counsel for Newham in her clear and able submissions, disagreed. She pointed to the power of Newham to deduct outstanding overpaid HB debts from future HB payments, albeit not available in Mr Joseph's case because he is no longer in receipt of HB. That power is not subject to any statute of limitations provision. The provisions of Newham's policy should be construed in a sensible and purposeful manner. The strict construction contended for by Mr Joseph would create potential unfairness in what is intended to be a policy that creates fairness. For example, a tenant such as Mr Joseph would be encouraged to withhold payment of overpaid benefit if he knew that it would be written off and taken out of this provision of the policy after six years.
25. The starting point of my consideration of this short point of construction is to look at how this type of debt is referred to in the relevant legislation. The reference in the policy to housing benefits overpayments is an obvious reference to the debt created by section 75 of the Social Security Administration Act 1992. This provides:

"Housing Benefit

75. Overpayments of housing benefit

(1) Except where regulations otherwise provide, any amount of housing benefit paid in excess of entitlement may be recovered in such manner as may be prescribed either by the Secretary of State or by the authority which paid the benefit.

(2) Regulations may require such an authority to recover such an amount in such circumstances as may be prescribed.

(3) An amount recoverable under this section is in all cases recoverable from the person to whom it was paid; …

(4) Any amount recoverable under this section may, without prejudice to any other method of recovery, be recovered by deduction from prescribed benefits."

I should also refer to section 9 of the Limitation Act 1980:

"Actions for sums recoverable by statute

Time limit for actions for sums recoverable by statute

9. (1) An action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued."

26. A deduction made from a payment otherwise payable is not, on the face of it, subject to a time limit imposed for actions for sums recoverable by statute. However, it is to be noted that what may be deducted pursuant to section 75(4) is "any amount recoverable under this section". The relevant sum to be deducted is "any amount of housing benefit paid in excess of entitlement [that] may be recovered" in the prescribed manner (subsection (1)). The overpaid HB that is being recovered is being recovered by virtue of this statutory provision so it is only recoverable within six years from the date of the cause of action accruing (section 9 of the LA 1980). Thus, once overpayment ceases to be recoverable under subsection (1), it is no longer recoverable under "this section" and is, therefore, no longer capable of being recovered by deduction from HB. The same situation arises under the current Housing Benefit Regulations 2006 because the power to deduct only arises in relation to recoverable overpayment (Regulation 102(1)). This construction of section 75 is supported by the reasoning of Mummery LJ in the analogous decision of the Court of Appeal in Regina (Balding) v SS for W & P) [2007] EWCA Civ 1327, particularly at paragraphs 27 – 29.
27. If the debt is irrecoverable because it is statute-barred or time-barred if Newham sue for it or claim it from Mr Joseph or if it is to be recovered by a deduction from HB payments otherwise to be paid by Newham, the debt would also fall to be written off under Newham's debt write-off policy. I also observe that the power to include a provision in a local authority's housing allocation policy should only be used for such bad property-related debts as constitute "minor rent arrears" (see Code of Guidance, paragraph 5.23). Once such arrears become statute-barred, they are not properly described as being arrears at all.

Discussion

28. I now turn to the meaning of the provision in Newham's Choice Based Scheme; "any property-related debts (such as rent arrears, council tax arrears or a housing benefit overpayment)". Is the HB overpayment that creates the relevant property-related debt capable of including an overpayment obligation which is no longer enforceable by claim, action or deduction and which would be eligible for write-off under Newham's current debt write-off policy? In my judgment, the answer is "no". HB that has been overpaid is only capable of being described as "overpaid" under the relevant statutory provisions if it is capable of being recovered. Once it ceases to be recoverable, it is no longer meaningful to describe it as a debt. Thus, in the context of a Housing Allocation Scheme, and in the context of Newham's other relevant policies and in the context of the statutory background that creates the conditions under which housing benefit overpayment can be recovered, I construe "debt" in the relevant phrase to mean "recoverable debt" and not to mean "debt including previously recoverable but now irrecoverable debt".

Conclusion

29. I conclude as follows:

(1) Mr Joseph lost the ability to challenge Newham's right to recover a sum of £1,335.29 when he failed to appeal the overpayment claim made on 4 May 1999 under the statutory procedure available to him at that time. Had Newham chosen to register that claim in the county court for enforcement or to sue him in the county court if registration was not accepted due to the disputed nature of the debt, Mr Joseph could have challenged Newham's right by way of a defence to that action.

(2) Newham lost the right to recover or enforce its claim, and to recover by way of deduction from benefits had Mr Joseph been entitled to any relevant benefits, six years after the original overpayment claim was put forward (i.e. on 4 May 2005).

(3) The right to deduct only arises in relation to recoverable overpayments, being overpayments whose recovery has not been barred by section 9 of the Limitation Act 1980.

(4) In context, the provision allowing property-related debts to lead to a losing of priority in Newham's choice-based scheme for housing allocation is a reference to recoverable housing benefit, that is to overpaid housing benefit whose recovery has not been barred by section 9 of the Limitation Act 1980.

(5) By applying the property-related debt provision of the choice-based scheme to property-related debts that were no longer recoverable in law to the detriment of Mr Joseph and his bidding for properties under the scheme, Newham were acting irrationally and contrary to Mr Joseph's legitimate expectation of how his applications under that scheme would be dealt with and treated.

(6) The decision of Newham's Visiting and Investigations Officer's dated 3 August 2007 should be set aside.

(7) Mr Joseph is entitled to a declaration that "It is unlawful for Newham to apply its property-related debt policy when operating its choice-based housing allocation scheme to debts created by the requirement to repay overpaid housing benefit where those debts are irrecoverable by virtue of section 9 of the Limitation Act 1980 and, in particular to the debt, or former debt of £1,335.29 or any part of that sum that was subject to an overpayment claim made by Newham on 4 May 1999."

30. I would like to conclude by expressing my appreciation for the restrained and succinct submissions of Mr Joseph and the considerable assistance and cogent submissions of Ms Artesi.