Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C1_07_8(HB) (20 January 2009)

Decision No: C1/07-08(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 16 October 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 16 October 2007 is in error of law. The error of law identified will be explained in more detail below.
2. Pursuant to the powers conferred on me by section 59 and paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I set aside the decision appealed against.
3. Pursuant to the powers conferred on me by section 59 and paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I give the decision which I consider the appeal tribunal should have given. That decision is that the appeal against the decision of the Northern Ireland Housing Executive (NIHE) dated 14 March 2006 is allowed, in that the NIHE has failed to prove that the decision-making process giving rise to the decision dated 14 March 2006 was correctly undertaken, or undertaken at all. The reasons why the decision-making process was invalid will be explained in more detail below.
4. The practical effect of my decision is as follows. I find that the NIHE has failed to make a valid decision which sought to alter the respondent's entitlement to housing benefit (HB) for the period from 27 July 2004. Accordingly, the decision that an overpayment of HB, amounting to £569.84, for the period from 27 July 2004 to 3 October 2004 was recoverable from the respondent is also not valid.
5. The respondent should note, however, that while the decision dated 14 March 2006 has been ruled to be invalid there is nothing to prevent the decision-making authorities within the NIHE from revisiting the decision-making process, and issuing valid decisions which seek to alter entitlement to HB, and, on that basis, raise a recoverable overpayment.
6. At the oral hearing of the appeal before the Social Security Commissioner, Mrs McRory from Housing Benefit Support Unit (HBSU) of the Department for Social Development submitted that in light of the length of time since the original decision seeking recovery of overpaid HB, and in light of the delay between the purported alteration of the HB entitlement decision and the raising of an overpayment of HB, that the NIHE should not pursue this matter further. That is a matter exclusively for the NIHE and I make no further comment on that submission.

Background

7. On 14 March 2006, a decision-maker in the NIHE decided that an overpayment of HB, amounting to £569.84, for the period from 27 July 2004 to 3 October 2004 was recoverable from the appellant.
8. An appeal against the decision dated 14 March 2006 was received in the Department on 13 April 2006.
9. The appeal tribunal hearing took place on 16 October 2007. The decision notice issued as the outcome of the hearing describes it is as an 'adjourned paper hearing'.
10. The appeal tribunal allowed the appeal and did not confirm the decision dated 14 March 2006. The appeal tribunal substituted the following decision:

'Appeal allowed.

There are grounds to supersede the decision awarding Housing Benefit. The overpayment of £496.84 which was made to [the claimant] in respect of the period 27.7.04 to 3.10.04 is not recoverable from him.'

11. On 25 October 2007 a request for a statement of reasons for the appeal tribunal's decision was received in The Appeals Service (TAS). The request was from NIHE.
12. On 19 December 2007 the statement of reasons was issued to all parties to the proceedings.
13. On 21 January 2008 an application for leave to appeal to the Social Security Commissioner was received in TAS. The application was from the HBSU. The grounds cited by the HBSU were:

(i) failure by the appeal tribunal to consider all of the evidence; and

(ii) an error in the original supersession decision which was erroneously accepted by the appeal tribunal.

14. On 28 January 2008, the application for leave to appeal was granted by the legally qualified panel member (LQPM). The point of law identified by the LQPM was:

'Whether the tribunal was correct in determining that the overpayment of Housing Benefit was not recoverable under Reg. 99(2) Housing Benefit (General) Reg. (NI) 1987.'

Proceedings before the Social Security Commissioner

15. On 12 March 2008 further correspondence relating to the appeal was received in the Office of the Social Security Commissioners (OSSC) from HBSU. The correspondence confirmed the grounds cited in the original application for leave.
16. On 13 March 2008 observations were sought from the respondent and these were received on 9 April 2008. The respondent opposed the application.
17. The respondent's observations were shared with HBSU on 17 April 2008.
18. On 18 September 2008 the application was accepted for special reasons by the Chief Commissioner.
19. An oral hearing of the appeal was directed by me to provide the respondent with the opportunity to make oral representations on the issues raised by the appeal. In any event, the respondent subsequently informed the OSSC that neither he nor his wife would be in attendance at the oral hearing.
20. Skeleton arguments on behalf of the appellant were received on 21 November 2008. These were shared with the respondent on 24 November 2008.
21. The oral hearing took place on 4 December 2008. As was noted above, the appellant was represented by Mrs McRory from HBSU. Gratitude is extended to both Mrs McRory, and Mrs Murray who prepared the skeleton argument, for their detailed and constructive observations, comments and suggestions.

The errors in the decision-making process

(i) The arguments

22. In the skeleton argument prepared for the oral hearing of the appeal, the HBSU identified four grounds in support of the submission that the decision of the appeal was in error of law, as follows:

(i) the appeal tribunal did not ensure that there was a proper decision to end entitlement to benefit to allow an overpayment decision to be made;

(ii) the appeal tribunal failed to take account of the evidence adduced by NIHE;

(iii) the appeal tribunal did not direct itself correctly on the law, identify the information that the claimant had about the HB scheme and it did not determine what the claimant could reasonably have been expected to realise from that information; and

(iv) it offset part of the overpayment by an amount of rent paid in advance even though it decided that the overpayment was not recoverable from the claimant.

23. Although the respondent did not provide a skeleton argument for the oral hearing of the appeal he did, at an earlier stage, make submissions on the issues raised by the appellant, and it is important that these are noted. In summary, the respondent submitted that:

(i) the overpayment was caused by an official error;

(ii) no relevant person caused the official error to be made;

(iii) no relevant person could reasonably be expected to have realised that an overpayment was being made;

(iv) in conclusion, the overpayment is not recoverable.

24. Inherent in the respondent's submissions is a challenge to the proper application of the legislative provisions relating to recovery of overpayments of HB.

(ii) What should be the proper decision-making process with respect to the raising of an overpayment decision in respect of HB?

25. Provision for decision-making with respect to the raising of overpayment decisions in respect of HB, for the purposes of the periods at issue in the present appeal, are to be found in Part XIII of the Housing Benefit (General) Regulations (Northern Ireland) 1987 and Part II of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001, all as amended. The legislative scheme is such that where an overpayment is purported to arise from an incorrect award of HB in the first place, there must be a revision or supersession of the decision(s) awarding entitlement to HB before a valid decision can be made that there has been an overpayment. That ambit of the legislative scheme and its inherent requirements has been emphasised by the Social Security Commissioners in Great Britain in CSHC/343/03 at paragraph 4, and in CH/2302/2002 at paragraph 11. That the term 'revised' in the original version of regulation 98 of the Housing Benefit (General) Regulations (Northern Ireland) 1987 had to be read as 'revised or superseded' was confirmed by the Social Security Commissioner in R(H) 6/04.

(iii) How was the decision-making process with respect to the raising of overpayment decision in respect of HB applied in the present case?

26. In the appeal submission, prepared for the hearing of the appeal, section 4 is headed 'Facts of the case'. In this section, at paragraph 1, it is noted that the respondent and his wife had been in receipt of HB periodically from October 1999.
27. The appeals writer submits, at paragraph 8, and following a 'suspension' of entitlement to HB, that:

'On the 5/10/04 the decision maker reviewed the housing benefit determination and decided that the award of housing benefit should be superseded on the basis that there had been a change of circumstances, as [the claimant] was not in receipt of Job Seekers Allowance from 18/07/04 in accordance with Regulation 8(2) of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001 and Regulation 68(1) of the Housing Benefit (General) Regulations (Northern Ireland) 1987.

[The claimant's] claim was cancelled from the 26/07/04 in accordance with Regulation 14(1) of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001. The outcome of the decision was that Housing Benefit had been overpaid for the period 27/07/04 to the 3/10/04 the amount of the overpayment was £569.84.'

28. The appeals writer then goes on to address the overpayment decision which was subsequently raised and which was the subject of the appeal.
29. On the face of it, therefore, a suggestion of a decision which might meet the requirements for there to be a revision or supersession of the decision(s) awarding entitlement to HB before a valid decision could be made that there has been an overpayment. The difficulty is that paragraph 8 of Section 4 refers the reader to 'TAB 7'.
30. Tab 7 is an NIHE form 'HB2'. It appears to include details of a telephone call between an NIHE officer and the respondent's wife. Additionally, the following is noted on the form:

'Benefit to be cancelled from 18/7/04 (Sunday) 26/7/04.

Unsuspend Benefit and cancel from 26/7/04.

Claimant in full time employment'

31. Whatever Tab 7 purports to be it was most certainly not a supersession or indeed any decision. At the oral hearing of the appeal, Mrs McRory conceded that the document at Tab 7 was not evidence of a decision which fulfilled the requirements of a revision or supersession of the decision awarding entitlement to HB. Further, Mrs McRory conceded that there is no evidence that there was ever a decision which fulfilled the requirements of a revision or supersession of the decision awarding entitlement to HB. In my view Mrs McRory was right to make those concessions. Accordingly, there was no valid decision-making process at NIHE level, giving rise to the overpayment decision.

(iv) How did the appeal tribunal go wrong in law?

32. The first task for an appeal tribunal is that it must identify the decision under appeal, and decide whether that decision is correct. In the present appeal the decision under appeal was the decision dated 14 March 2006, in which it was decided that an overpayment of HB, amounting to £569.84, for the period from 27 July 2004 to 3 October 2004 was recoverable from the appellant.
33. In deciding whether this decision was correct the appeal tribunal would have to be satisfied that, as the overpayment was purported to arise from an incorrect award of HB in the first place, there was a valid revision or supersession of the decision(s) awarding entitlement to HB before the decision made that there had been an overpayment.
34. The appeal tribunal did consider this issue. As was noted above, in the decision notice, the appeal tribunal stated that 'There are grounds to supersede the decision awarding Housing Benefit.' Further in the statement of reasons for the appeal tribunal's decision it is stated that 'I also accept that the decision awarding Housing Benefit was properly superseded on 5 October 2004'.
35. In neither the decision notice nor the statement of reasons is there any further explanation as to why the appeal tribunal agreed that there had been a valid supersession of the decision awarding HB, nor why it accepted that there were grounds to supersede. It would appear that the appeal tribunal accepted the submission made to that effect in paragraph 8 of section 4 of the appeal submission.
36. For the reasons noted above, the decision-making process was flawed in that there had never been a valid supersession of the decision(s) awarding entitlement to HB. In accepting and agreeing that there had, the decision of the appeal tribunal was in error of law.
37. As I noted in C4-08/09(IS), at paragraph 42, in deciding whether the identified decision under appeal is correct, an appeal tribunal:

'… may be directed by the submissions of the Department on what the decision under appeal is, on the factual, evidential and legal issues arising, on the legislative provisions and case-law applicable to the issues arising and on the correctness of the decision which has been made. The Departmental submission, and any addenda, should be as accurate, comprehensive and useful as possible. The submission is for direction, however, and does not negate the responsibility of the appeal tribunal to make its own examination and analysis.'

(v) Could the errors in the decision-making process have been rectified?

38. The duties of an appeal tribunal, in determining an appeal against either a revision or supersession decision, were comprehensively analysed and reviewed by a Tribunal of Social Security Commissioners in Great Britain in R(IB)2/04. That decision is clear authority for the proposition that where an appeal tribunal identifies defects in a decision which purports to change the effect of a previous decision (eg failure to use the terms 'revise' or supersede', failure to indicate that a previous decision is being revised or superseded, failure to identify the previous decision being revised or superseded, failure to specify the ground for revision or supersession or reliance on the wrong ground for revision or supersession), the appeal tribunal has the jurisdiction to remedy those defects and make the decision which the Department ought to have made.
39. That these principles in R(IB) 2/04 apply to the decision-making and appeals provisions in respect of HB was confirmed by the decision of the Social Security Commissioner in CH/4354/2003 at paragraph 23.
40. The power to remedy defects is limited, however, the Tribunal of Commissioners in R(IB) 2/04 recognised, at paragraph 72 that:

'… there may be some decisions made by the Secretary of State which have so little coherence or connection to legal powers that they do not amount to decisions … at all.'

41. These exceptional cases could not be subjected to the newly identified remedying powers.
42. In the present case not only did the purported supersession 'decision' which the appeal tribunal accepted have 'little coherence or connection to legal powers' that it did not amount to a decision at all, it did not, in my view, have any such coherence or connection in that there is no evidence that it existed at all. Accordingly, the issue of the remedying of defects in it does not arise.

(v) The other errors identified by the appellant

43. The analysis to date has been of the first error identified by the HBSU in relation to the supersession issue. That error is sufficient to deal with the appeal and to permit the decision of the appeal tribunal to be set aside as being in error of law.
44. I would note, however, that all of the other three grounds identified by the HBSU were also arguable. Grounds (ii) and (iv) would have been thoroughly analysed if the appeal had been remitted to a new appeal tribunal for its further determination, as they would both have been amenable to analysis involving the giving of direction and guidance to any newly constituted appeal tribunal. As the disposal of the appeal does not involve such remittance, that analysis is not necessary.
45. The final ground related to the correct approach to the legislative test for recovery of overpayments set out in regulation 99 of the Housing Benefit (General) Regulations (Northern Ireland) 1987 and, more particularly, regulation 99(2). Decision-makers and appeal tribunals are referred to the decision of Commissioner Jacobs in CH/3302/2002, which sets out the relevant analysis to be undertaken.

A final note

46. In the appeal submission, prepared for the appeal tribunal hearing, reference is made to the 'suspension' and 'cancellation' of entitlement to HB. Decision-making procedures within the NIHE must follow the legislative scheme for such decisions, set out, for the most part, in the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001, as amended. That scheme makes it clear that the principle methods whereby entitlement decisions may be altered is through revision and supersession.
47. The scheme does also provide for the 'suspension' and 'termination' of entitlement to benefit, in certain prescribed circumstances. It appears to be the case, however, that the term 'cancellation' is utilised by decision-makers and appeals writers when the decision which is being made is, in law, a revision or supersession. In the present case there are clear references to entitlement being 'cancelled'.
48. The remarks of Commissioner Williams, in CH/2302/2002, in connection with this issue, are relevant. At paragraph 13 he states:

'I add a general comment. I have now seen a number of cases where Councils say they are "cancelling" an award of benefit retrospectively to the first date of award. As I commented in CH 1085 2002, that is not statutory language. A decision to award can be revised or superseded. It cannot be cancelled. The use of the term "cancel" has led to a lack of clarity in dealing with this. Any revision or supersession must be under the appropriate provision of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, and must be from the appropriate date under those regulations. Councils should therefore use the proper language, and should identify why they are revising or superseding, and from what date. And they should be aware that the onus is on them to satisfy tribunals of the grounds for a revision or supersession and the date from which it operates.'

49. These comments and guidance are equally appropriate to decision-makers in Northern Ireland.

(signed) K Mullan

Commissioner

20 January 2009