Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2007] NISSCSC C2_06_07(HB) (19 December 2007)

Decision No: C2/06-07(HB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
HOUSING BENEFIT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 25 January 2006
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against a decision dated 25 January 2006 of an appeal tribunal sitting at Armagh. That tribunal disallowed the claimant's appeal against a Departmental decision to the effect that the claimant had an occupational pension which was a material fact which he did not disclose and which led to an overpayment of housing benefit (HB) in the sum of £11,191.87 for the period 23 October 1995 to 24 June 2002.
2. On 19 October 1995 the claimant completed an application for HB with the assistance of a housing benefits officer. The form was completed detailing that the claimant's only income was incapacity benefit (IB). On the basis of this application the claimant was paid HB for the period of 23 October 1995 – 1 April 1996 at the weekly amount of £25.24 for rent and £0.76 for rates. Subsequent application forms for HB were completed and signed by the claimant on 12 February 1996, 5 March 1997, 4 February 1998, 12 February 1999, 23 February 2000, 10 February 2001 and 19 February 2002 in which the only income recorded was that of IB. On 21 May 2002 information was received that indicated that the claimant was in receipt of an occupational pension. Investigations made by the Benefit Investigation Unit confirmed that this was the case. As a result of this information a decision-maker on 17 June 2002 suspended the award of HB in accordance with regulation 11(1) of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001. A letter was also issued to the claimant on 17 June 2002 requesting details of his occupational pension. On 21 May 2002 information was received that indicated that the claimant was in receipt of an occupational pension, investigations made by the Benefit Investigation Unit confirmed that this was the case. On 20 June 2002 notification of the decision to suspend the award of HB was issued to the claimant. On 2 July 2002 a decision-maker revised the award of HB from 23 October 1995 and recalculated the award taking into account the claimant's occupational pension. As a result it was found that HB had been overpaid for the period from 23 October 1995 to 24 June 2002 and this overpayment amounted to £11191.87. On 8 July 2002 notification of the overpayment decision was issued to the claimant.
3. On 11 July 2002 the claimant appealed the decision. On 19 June 2003 an appeal tribunal allowed the claimant's appeal and found that an overpayment amounting to £11191.87 concerning the period of 23 October 1995-24 June 2002 had occurred but was not recoverable from the claimant. The Department appealed this decision and Mrs Commissioner Brown (in C1/04-05(HB)) set aside the decision as it was erroneous in law. She remitted the case to be reheard and re-determined by a differently constituted tribunal.
4. On 25 January 2006 the new appeal tribunal disallowed the claimant's appeal and found that as a result of failing to disclose receipt of an occupational pension an overpayment of HB of £11191.87 for the period 23 October 1995 to 24 June 2002 was recoverable from the appellant.
5. A copy of the record of proceedings and statement of reasons was issued on 21 June 2006. On behalf of the claimant Mr Druse applied for leave to appeal on 21 July 2006. Leave was refused by the Legally Qualified Member on 31 July 2006. On 18 August 2006 an application for leave to appeal the tribunal decision was made to a Commissioner.
6. Leave to appeal was granted by a Commissioner on 11 April 2007.
7. The new tribunal in its deliberations considered regulation 99(1), (2) and (3) of the Housing Benefit (General) Regulations (Northern Ireland) 1987 (SR No 461). I understand that both Mr Druse of Armagh Citizens Advice Bureau, representing the claimant, and Mr O'Connor of Decision Making Services Branch, representing the Department, are agreed that this is the relevant provision.
8. Regulation 99, as far as it is relevant to this case, was in the following terms:

"Recoverable overpayments

99.-(1) Any overpayment, except one to which paragraph (2) applies, shall be recoverable.

(2) Subject to paragraph (4A), this paragraph applies to an overpayment caused by an official error where the claimant or a person acting on his behalf or any other person to whom the payment is made 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.

(3) In paragraph (2), 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 appropriate authority, or by an officer or person acting for that authority, or by an officer of the Department acting as such 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.

(4) Paragraph (2) shall not apply with respect to overpayments to which regulation 98(b) refers.

(4A)Where in consequence of an official error, a person has been awarded a rent rebate or rate rebate or both, to which he was not entitled or which exceeded the benefit to which he was entitled, upon the award being revised any overpayment of benefit, which remains credited to him by the relevant authority in respect of a period after the date on which the revision took place, shall be recoverable."

(Regulation 99 has varied slightly over the overpayment period (23 October 1995 to 24 June 2002) but the variations do not affect the issues relevant to this case.)

9. I have taken into account the decision in C1/04-05(HB) I consider that decision to be to some extent misleading in that it implies when considering regulation 99(1), (2) and (3), that the concepts of failure to disclose and misrepresentation have to be proven, as they have to be in recovery under the usual social security legislation - section 69 of the Social Security Administration (Northern Ireland) Act 1992.
10. The representatives have properly focussed on regulation 99 which does not express any such concepts. Regulation 99(1) provides that any overpayment shall be recoverable, except one to which paragraph (2) applies. Paragraph (2) applies to an overpayment caused by an official error where the claimant could not, at the time of receipt of the payment or any notice relating to that payment, reasonably have been expected to realise that it was an overpayment.
11. Regulation 99(3) defines an overpayment caused by an official error as an overpayment caused by a mistake made whether in the form of an act or omission, by the appropriate authority where the recipient of the payment did not cause or contribute to the act or omission.
12. Mr Commissioner Jacobs in Great Britain decision CH/3349/2004, at paragraph 22, stated that regulation 99(2) was an exception to the rule that the housing authority had the legal burden of proving that there was an overpayment in that, under regulation 99(2), the burden of proof is on the claimant. I agree with this statement of law. Any overpayment (proven, as here by the Northern Ireland Housing Executive) (NIHE)) is recoverable unless regulation 99(2) applies, ie unless the claimant can bring himself within the exception.
13. As Mr O'Connor stated, the tribunal found that the overpayment was recoverable as the claimant failed in his duty to notify the NIHE of his occupational pension (under regulation 73 of the Housing Benefit (General) Regulations (Northern Ireland) 1987) and/or report a change of circumstances (under regulation 75 of the same Regulations).
14. In CH2794/2004 Mr Commissioner Jacobs referred to a situation where, even had there been an official mistake for the purposes of regulation 99(3), the claimant's omission to mention a pension in each of the claim forms was at least a contribution to that mistake. Accordingly Mr O'Connor submitted that in the present case the claimant also had made a contribution to the mistake. That being so, it was not an "overpayment caused by an official error" within the definition of regulation 99(3). I am in agreement with Mr O'Connor in his submissions on this matter.
15. Mr Druse argues that the HB claim form was not the claimant's. I do not agree. The claimant claimed the benefit on the basis of the claim form. He admits to not having informed any official about his occupational pension, despite there being a question on the form specifically related to such a pension. Whether or not any official assisted with the filling in of the form, it was the claimant's claim form and he had ultimate responsibility for the contents thereof.
16. The tribunal was entitled to conclude that the claimant was notified of the income which was taken into account in calculating his HB. The claimant could not therefore bring himself within regulation 99(2).
17. Mr Druse has raised other grounds concerning the tribunal's decision not being supported by the evidence and its reasons not being adequate. Both are opposed by Mr O'Connor and, in my view, rightly. In my view there was adequate evidence to support the tribunal's conclusions and the reasons were adequate to explain the decision.
18. I consider that decision C1/04-05(HB) was wrong to indicate that the issues of misrepresentation and/or failure to disclose were relevant, as they are in most social security cases. Accordingly, I do not follow C1/04-05(HB) on this point. Regulation 99 is complete in itself.
19. Moreover, it is appropriate for me at this stage to deal with some collateral matters that are still in issue.
20. The decision notice of 25 January 2006 did not refer to "misrepresentation" while the statement of reasons included "misrepresentation" as one of the reasons for the dismissal of the appeal. However, I do not find this to be an error of law. The decision notice is not inconsistent with the statement of reasons and any inadequacy in the reasons given in the decision notice is cured by the full reasons. In view of my previous findings on the lack of relevance of misrepresentation to this case, if it were an error of law to omit a reference to misrepresentation, it is one that does not serve to vitiate the decision.
21. It is correct that the second tribunal reached a different conclusion on the facts, compared to that of the first tribunal, and Mr Druse argues that it reached such a conclusion without the benefit of hearing in full the evidence that the first tribunal did and failed to explain why it rejected the first tribunal's findings. Such omissions, he argued, were errors in law. However, I do not agree. The appeal is by way of complete rehearing. The tribunal had before it sufficient evidence to find on the facts that the claimant had contributed to the mistake which led to the overpayment. Given the available adequate evidence it was not an error of law to fail to adjourn to hear even more evidence. Having reached a sustainable conclusion and having explained its reasoning adequately, it was under no obligation to compare and contrast its decision with that of the previous tribunal.
22. The appeal is dismissed.

(signed) J A H Martin QC

Chief Commissioner

19 December 2007