AW-v-Department for Social Development (HB) [2013] NICom 68

 

Decision No: C1/13-14(HB)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

HOUSING BENEFIT

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 6 July 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 6 July 2010 is not in error of law.  Accordingly the decision of the appeal tribunal to the effect that an overpayment of housing benefit (HB) for the period from 3 February 2003 to 5 March 2006 amounting to £7120.65 has been made and is recoverable from the appellant is confirmed.

 

         Background

 

2.     The following factual background is adapted from that set out by Miss Quinn in her original observations on the application for leave to appeal to the Social Security Commissioner.

 

3.     On 4 February 2003 the appellant submitted an application form to HB in respect of his tenancy at an address which I will refer to throughout this decision as ‘Address A’.  On 12 February 2003, and as the appellant was also in receipt of income support (IS), entitlement to HB at the full rate was awarded for the period from 3 February 2003 to 6 April 2003.

 

4.     On 28 February 2003 a renewal claim form to HB was received and, as the appellant’s circumstances had not changed in that he was still in receipt of IS, entitlement to HB at the full rate was awarded from 7 April 2003 to 4 April 2004.  On 11 August 2003 the decision awarding entitlement to HB was superseded as there was a change to the amount of the appellant’s rent.  The new amount of HB was awarded from 11 August 2003 to 4 April 2004.

 

5.     As the appellant’s HB award was due to expire on 4 April 2004, a renewal claim form was issued in February 2004 and records from the Northern Ireland Housing Executive (NIHE) show that it was returned on 4 April 2004.  For various reasons set out by Miss Quinn on 5 April 2004 the appellant was awarded an entitlement to HB at the full rate from and including 5 April 2004.

 

6.     On 2 February 2006 the appellant completed a termination of tenancy form in respect of ‘Address A’.  He advised that he was moving to live with his girlfriend who resided at what I will refer to throughout this decision as ‘Address B’.  The appellant’s tenancy was therefore terminated from and including 5 March 2006 and entitlement to HB ceased from 5 March 2006.

 

7.     In or around 3 February 2009 the NIHE received information from the Social Security Agency’s Benefit Investigation Services which suggested to the NIHE that the appellant had been living with his girlfriend at ‘Address B’ throughout the period of his claim to HB.

 

8.     On 3 February 2009, and as a result of the information received from Benefit Investigation Services, a decision-maker in NIHE revised the decisions to award HB as they were submitted to have been made in ignorance of a material fact.  The decision-maker decided that, on the balance of probabilities, the appellant was not entitled to HB for the period 3 February 2003 to 5 March 2006 as he did not occupy ‘Address A’ during that period.

 

9.     As a consequence of the decision dated 3 February 2009, on 16 February 2009, a decision-maker decided that an overpayment of HB, for the period 3 February 2003 to 5 March 2006, amounting to £7,120.65 had been made and that the overpayment was recoverable from the appellant.  I shall address the question of notification of the decision dated 16 February 2009 below.

 

10.   On 6 April 2009 an appeal against the decision dated 16 February 2009 was received in NIHE.

 

         Proceedings before the appeal tribunal

 

11.   An appeal tribunal hearing took place on 6 July 2010. The appeal proceeded by way of a ‘paper’ hearing. In the record of proceedings for the appeal tribunal hearing the appeal tribunal has noted that:

 

‘(The claimant) did not wish to attend an oral hearing so the case was determined on the basis of the above documentation’

 

12.   I shall return to the appellant’s participation in the proceedings below.

 

13.   The appeal tribunal disallowed the appeal and issued a decision notice to the following effect:

 

‘Appeal disallowed

 

(The claimant) failed to disclose the material fact that he did not occupy (‘Address A’).  This resulted in an overpayment of Housing Benefit for the period 3/2/03 – 5/3/06 amounting to £7120.65 which is recoverable from him.’

 

14.   On 10 November 2010 an application for leave to appeal was received in the Appeals Service from GR Ingram & Co (Solicitors) who were now representing the appellant.  On 16 November 2010 the application for leave to appeal was refused by the legally qualified panel member.

 

         Proceedings before the Social Security Commissioner

 

15.   On 20 January 2011 a further application for leave to appeal was received in the Office of the Social Security Commissioners (OSSC).  On 28 March 2011 the appellant’s representative was requested to provide details of the reasons why the application for leave to appeal was received outside of the prescribed period for making such an application.  A reply in connection with the question of ‘lateness’ was received in OSSC on 18 April 2011.  On 6 July 2011 observations on the application for leave to appeal were sought from Housing Benefit Advice (HBA).  Additionally on 6 July 2011 I accepted the late application for special reasons.

 

16.   Initial written observations on the application were received from Miss Quinn of HBA on 5 August 2011.  On 18 August 2011 further written observations were received from Miss Quinn.  I shall return to the content of both of those sets of observations below.  All written observations were shared with the appellant and his representative on 6 September 2011.  On 29 February 2012 Miss Quinn was requested to provide further clarification on certain issues arising in the application for leave to appeal.  A further submission was received from Miss Quinn on 28 March 2012, the contents of which I shall return to below.  The further submission was shared with the appellant and his representative on 3 April 2012.

 

17.   On 4 May 2012 I directed an oral hearing of the application.  The oral hearing of the application was listed for hearing on 1 August 2012.  On 26 July 2012 the appellant’s representative in e-mail correspondence indicated that there had been a delay in obtaining instructions from the appellant.  He stated, however, that he had now been instructed not to attend the oral hearing, that the appellant would also not be in attendance and that the appellant was content for the application to proceed on the basis of written submissions already made.  I decided, nonetheless, that the oral hearing of the application should proceed.  The oral hearing was attended by Miss Quinn.  I am grateful to her for her detailed and constructive observations, comments and suggestions.  There then followed a delay in the promulgation of this decision occasioned, in part, by the requirement to confirm whether further proceedings in another case were to be instigated before the Social Security Commissioners by the appellant’s partner.

 

         What is an error of law?

 18.  A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

19.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i) making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)  failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v)  making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

         Was the decision of the appeal tribunal in the instant case in error of law?

 

20.   I begin by considering the grounds which were set out on behalf of the appellant in the application for leave to appeal.  In summary the appellant’s representative submitted that:

 

(i)    they were not engaged by the appellant in respect of his appeal but had been engaged by the appellant’s partner in respect of her appeal;

 

(ii)  the appeals in respect of the appellant’s partner in connection with overpayments of HB and IS were heard on 10 December 2010 and were dismissed;

 

(iii) they had obtained the statement of reasons in respect of the partner’s appeals and were giving consideration to seeking leave to appeal to the Social Security Commissioners;

 

(iv) the ultimate outcome of the partner’s proceedings had a direct bearing on any decision in respect of the appellant’s proceedings;

 

(v)  given that the appellant did ‘… not co-operate with proceedings until this time’ and that ‘… he did not give evidence at his appeal’ leave to appeal should be granted on the basis that the appeal tribunal erred in law by proceeding with his appeal in his absence and given that his partner’s appeal was pending on that point;

 

(vi) the decision of the appeal tribunal should be set aside pending the ultimate outcome of the partner’s proceedings or, alternatively, both sets of proceedings should be heard together.

 

21.   The submissions address two separate issues.  The first is that the appellant’s partner had instigated separate proceedings before the appeal tribunal; that these proceedings impacted on or had a direct bearing on the appellant’s own proceedings and that consideration should have been given by the appeal tribunal to the question of adjourning the appellant’s proceedings pending final determination of the proceedings related to the appellant’s partner.  The second issue is whether the appeal tribunal, in any event, and notwithstanding the separate proceedings relating to the appellant’s partner, should not have made the decision to proceed with the appeal in the absence of the appellant.

 

22.   With respect to those submissions made on behalf of the appellant, I cannot accept them.  The fact that the appellant did not ‘co-operate with the proceedings’ or ‘give evidence at his appeal’ is entirely a matter for him.  Further, the fact that the appellant did not engage the services of a representative until such times as his appeal was disallowed is, again, a matter for him.

 

23.   I note from the file of papers which is before me that following receipt of his appeal the clerk to the appeal tribunal wrote to the appellant on 7 April 2010 asking him to notify the clerk whether he wished to have an oral hearing of his appeal or whether he was content for the appeal to proceed without an oral hearing.  Accompanying that correspondence was a form which the appellant was requested to complete by ticking the relevant box which reflected his choice of hearing.  Further, the appellant was given the opportunity to nominate a representative to act on his behalf in connection with the appeal tribunal proceedings.  The appellant was also supplied with a copy of an information leaflet concerning appeal tribunal proceedings and a copy of the appeal submission prepared by the Department.  The appellant did not act on any of this detailed advice and guidance preferring not to be represented or to attend an oral hearing of the appeal. In those circumstances, failure to ‘engage’ or ‘so-operate’ with the proceedings cannot be laid at the door of the appeal tribunal. Accordingly, I cannot accept that the decision to proceed with the appeal tribunal hearing in the absence of the appellant renders its decision as being in error of law.

 

24.   Similar considerations apply to the submission that a second basis on which an adjournment of the proceedings should have been considered was the extant parallel proceedings relating to the appellant’s partner.  In the application for leave to appeal it was submitted on behalf of the appellant that his partner’s appeal related to overpayments of IS and HB.  Although I do not have the precise details of those appeal proceedings before me I have no doubt that the issues arising in the appeal, as in the present proceedings, concerned the living arrangements between the appellant and his partner.  To that extent, therefore, the two sets of appeal tribunal proceedings were related.  In the application for leave to appeal it is noted that the appeal tribunal proceedings relating to the appellant’s partner were concluded on 10 December 2010 with the outcome that the appeals were dismissed.  It was indicated that consideration was being given to the possibility of making an application, on behalf of the appellant’s partner, for leave to appeal to the Social Security Commissioner.

 

25.   The appellant’s own appeal tribunal proceedings took place on 6 July 2010.  Although in advance of the actual appeal tribunal proceedings relating to his partner, I have no doubt that by 6 July 2010 the appellant was aware that the Department had made decisions in connection with IS and HB relating to his partner.  It seems to me that had the appellant formed the view that the proceedings in connection with his partner had the significant bearing on his own appeal tribunal proceedings which he claims then an application could readily have been made to the appeal tribunal to have his own appeal proceedings adjourned.  No such application was made and, as was noted above, the appellant failed, of his own volition, to engage with the appeal tribunal.  In those circumstances it is difficult to know how the appeal tribunal was expected to become aware of the parallel appeal tribunal proceedings.  Accordingly, I cannot agree that the decision of the appeal tribunal not to adjourn because of the extant parallel proceedings relating to the appellant’s partner does not also render its decision as being in error of law. I have noted that, in any event, the appellant’s partner decided not to pursue further proceedings before the Social Security Commissioners.

 

26.   An appeal tribunal has the legislative power, under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion.  Such an adjournment might be for the attendance of an appellant or other witness, or for the production of additional evidence.  A decision by an appeal tribunal as to whether or not to adjourn is one within its own judicial discretion.

 

27.   As was indicated by the Mrs Commissioner Brown at paragraph 16 of C6/05-06 (IB):

 

“I do not consider that the tribunal need even consider adjourning unless there is something to indicate that the appeal should not be heard on the papers.  It therefore follows that unless there is some such indication the tribunal need not consider adjourning and need not refer to having considered adjourning.  If there is no indication that determination on the papers would not lead to a fair hearing the tribunal need not adjourn nor even consider adjourning.”

 

28.   In the instant case, the appeal tribunal’s decision to proceed to determine the appeal on the basis of the evidence before it was rational, and one which it was entitled to make.

 

29.   I turn now to the issues raised by Miss Quinn in her initial and supplementary written observations on the application for leave to appeal, in the further submission provided in response to the request made by me, in the case summary prepared for the oral hearing of the application and in her oral submissions made during the course of that oral hearing.

 

30.   The first of the issues raised by Miss Quinn concerned the decision made on 3 February 2009.  A copy of the decision dated 3 February 2009 is attached to the original appeal submission as Tab No 20.  Tab No 20 is a standard-form template ‘Housing Benefit Decision’.  It is in my view, a relatively straightforward decision.  The decision identified as the question requiring resolution is whether the appellant satisfied the conditions of entitlement to HB for the period from 3 February 2003 to 5 March 2006.  It seems to me that the identified dates are correct.  The appellant had been awarded an entitlement to HB from the initial date of 3 February 2003.  The appellant, by way of submission of a ‘Notice of Termination of Tenancy Form’, completed on 2 February 2006 and received in the NIHE on that date, had informed the NIHE that he had ceased the tenancy at ‘Address A’ from 6 February 2006.  As Miss Quinn notes at paragraph 16 of her original written observations on the application for leave to appeal, the appellant was entitled, through regulation 5(5A) of the Housing Benefit (General) Regulations (Northern Ireland) 1987, to a further entitlement to four weeks of HB after he left ‘Address A’.

 

31.   Thereafter the decision of 3 February 2009 at Tab No 20 sets out details of the evidence and information which was before it.  At Part 2 of the decision notice the decision is recorded as:

 

‘My revised decision is not to award HB for the period 3/2/03 to 5/3/06 as on the balance of probabilities (the claimant) did not occupy (’Address A’)’

 

32.   The reasons given for the decision were that the appellant did not occupy ‘Address A’ as he was living with his partner at ‘Address B’.

 

33.   Significantly the ‘Regulations’ which were identified as being applied were section 129 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and regulation 4(2)(b) of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001.

 

34.   It seems to me that the gist of the decision dated 3 February 2009 was as follows. Section 129(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 sets out the basic conditions of entitlement to HB.  One of those conditions is that a person is entitled to HB if he is liable to make payments in respect of a dwelling in Northern Ireland which he occupies as his home.  Regulation 4(2)(b) of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001 provides that:

 

‘(2) An original decision may be revised or further revised by the relevant authority which made the decision, at any time by that authority, where that decision—

 

      …

 

‘(b) was made in ignorance of, or was based upon a mistake as to, some material fact and as a result of that ignorance of or mistake as to that fact, the decision was more advantageous to the person affected than it would otherwise have been but for that ignorance or mistake.’

 

35.   Accordingly, the decision making an award of entitlement to HB was made in ignorance of, or was based upon a mistake as to, the material fact that the appellant was no longer liable to make payments in respect of ‘Address A’ and he was no longer occupying ‘Address A’ as his home.

 

36.   In her initial written observations on the application for leave to appeal, Miss Quinn submitted that:

 

‘The decision dated 3 February 2009 does not clearly identify the decisions being revised however I submit that as the decision clearly states that the revised decision is for the period from 3 February 2003 to 5 March 2006 it is implicit that the decisions being revised are all the decisions in that period.  The tribunal did not raise any issues in relation to the revision but accepted that there was an overpayment for the period 3 February 2003 to 5 March 2006 due to the fact that (the claimant) did not reside at [‘Address A’] and the amount overpaid was recoverable from (the claimant) from 3 February 2003 to 5 March 2006 as he failed to disclose the material fact that he did not occupy [‘Address A’].

 

In disallowing the appeal it is implicit therefore that the tribunal was satisfied that (the claimant) was not entitled to housing benefit for the relevant period and that revisions had properly taken place.  I submit therefore there is no error in law in this respect.’

 

37.   I shall return to the question of notification of the decision dated 3 February 2009 below.

 

38.   As was noted above, the Department made a further decision dated 16 February 2009.  A copy of that decision is attached to the original appeal submission as Tab No 21.  Tab 21 is a standard-form template ‘Housing Benefit/Rate Relief Overpayment Decision Form’.  It states that an overpayment of HB has occurred for the period from 3 December 2003 to 5 March 2006 which is deemed to be recoverable from the appellant.  In her initial written observations on the application for leave to appeal, Miss Quinn points out that there is an error in the recording of the period of the recoverable overpayment.  The commencement date for the period is recorded as 3 December 2003 rather than 3 February 2003.  Miss Quinn submitted, however, that this was simply a transcription error.  The total amount of the recoverable overpayment was calculated correctly; the appellant was notified of the correct amount and period of the total overpayment and the appeal tribunal, in both the statement of reasons for its decision and in the decision notice, correctly recorded the relevant period and amount of the overpayment.  I agree with Miss Quinn that this was a straightforward transcription error.  The commencement date was entered as ‘3/12/03’.  It is clear that the ‘12’ has been entered in error for the more accurate ‘2’.  Finally, it is important to note that in the decision dated 16 February 2009, the recorded reason for the overpayment is stated to be that the ‘Customer not occupying property as his main home’.

 

39.   I turn to the issue of the notification of the decisions dated 3 February 2009 and 16 February 2009.  In a further written submission Miss Quinn submitted the following, in connection with the issue of notification of the decision dated 3 February 2009:

 

‘The Department contacted the Executive regarding the notification of the decision dated 3 February 2009 who advised that normally the computer system would generate an automatic notification when the decision is made however in this case the system notification was inadvertently suppressed by the decision maker. The Executive have been unable to explain why this happened and as the decision notification was suppressed a copy cannot be reproduced however a copy of a similar notification for a revision is attached (Tab no. 34 – this is a new tab).   

 

The Executive however are satisfied that the notification letter dated and issued on 16 February 2009 (Tab 22) covered both the entitlement decision dated 3 February 2009 and the overpayment decision dated 16 February 2009.’      

 

40.   Attention turns, therefore to the notification of the decision dated 16 February 2009.  Attached to the original appeal submission as Tab No 22 is a copy of correspondence from the NIHE to the appellant which is submitted to be the notification of the decision made by the NIHE on the same date.  Miss Quinn candidly admits that the notification letter dated 16 February 2009 contains errors.

 

41.   The first of these is that it informs the appellant that the decision making him an award of entitlement to HB was revised as he was submitted to have failed to notify the NIHE of a material change of circumstances.  That is an error because the legal basis on which the original entitlement decision was revised was, as was noted above, under regulation 4(2)(b) of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001, namely ignorance of or mistake as to a material fact.  The second error submitted by Miss Quinn is that the notification letter does not specify that there is not any entitlement to HB for the period from 3 February 2003 to 5 March 2006.  Nonetheless, Miss Quinn submits that the letter does make clear the period for which and the amounts in which HB was overpaid and was recoverable.  Finally, Miss Quinn submits that the notification letter did not set out the appellant’s rights to request a written statement of reasons for the decision and that he could seek a reconsideration of the decision.

 

42.   Before addressing the errors identified by Miss Quinn, I had noted that the copy of the notification letter dated 16 February 2009 is annotated in handwriting as follows:

 

‘Rang didn’t get this letter another copy sent 12/3/09.’

 

43.   I have noted, further, that at Tab No 25 of the original appeal submission is what is stated to be a record of a telephone conversation between an officer of the NIHE and the appellant on 27 March 2009.  Paragraph 10 of section 4 of the appeal submission states that during the telephone conversation the appellant was given ‘… details regarding the overpayment and was advised that a copy of the letter of the 12/03/09 would be issued to him.’  Miss Quinn was requested to provide a further explanation of these communications.  Her response was as follows:

 

‘The hand written note dated 27 March 2009 (Tab no. 25) is a record of a telephone conversation between (the claimant) and the Executive.  It is a poor record of the conversation but it does indicate that on 12 March 2009, a copy of the letter dated 16 February 2009 was reissued to (the claimant).  It would appear therefore that the letter sent to (the claimant) on 12 March 2009 is a copy of the letter dated 16 February 2009 (Tab no. 22).

 

There is also a hand written note on the copy of the letter dated 16 February 2009 stating that a copy of it was issued on 12 March 2009.

 

A letter was received from (the claimant) dated 23 March 2009 (Tab 24) indicating that the first letter he received from  The Executive was the letter dated 16 March 2009 advising him of possible court action (Tab 23).  It would appear therefore that (the claimant) did not receive the letter which was reissued to him on 12 March 2009.  (The claimant’s) letter of appeal (Tab 1) indicates that the decision he was appealing was notified to him in a letter dated 27 March 2009.  It would therefore appear that the letter dated 16 February 2009 was reissued to (the claimant) for a second time on 27 March 2009.’

 

44.   Miss Quinn submits that despite not being advised in the letter of 16 February 2009 of his right to request reasons for the decision or to seek a reconsideration of it, the appellant did write on 23 March 2009 to the NIHE seeking an explanation of the decision.  Further, an explanation of the decision was provided to him during the telephone conversation on 27 March 2009.  Following receipt of his appeal, the NIHE did undertake a reconsideration of the decision on 21 May 2009 and was advised of the outcome of that reconsideration on the same date.  Finally, the appellant was provided a copy of the appeal submission which included a copy of the decision dated 3 February 2009.  Accordingly, the appellant was not prejudiced by the errors which took place in the notification of the decisions dated 3 February 2009 and 16 February 2009.

 

45.   I turn, therefore, to how the appeal tribunal addressed all of these issues.  It is important to recall that the decision which was under appeal to the appeal tribunal was the decision dated 16 February 2009.  That was the overpayment decision.  In C1/07-08(HB), I said the following, at paragraph 25 of that decision:

 

‘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.’

 

46.   Those comments remain relevant today, except, of course, that Housing Benefit Regulations, including the Housing Benefit (General) Regulations (Northern Ireland) 1987 were consolidated by the Housing Benefit (General) Regulations 2006.  Subsequently, the 1987 regulations were revoked by regulation 3 and Schedule 1 of the Housing Benefit (Consequential Provisions) Regulations (Northern Ireland) 2006.

 

47.   Accordingly, an appeal tribunal, dealing with an appeal against a HB overpayment decision will have to remind itself that it is required to identify two decisions – one which altered the decision giving entitlement to HB in the first place, such alteration by way of revision and supersession and a subsequent decision which raised an overpayment of HB.

 

48.   In the instant case, the appeal tribunal had been provided with a copy of the appeal submission prepared by an appeals officer in the NIHE.  At paragraph 5 of the section 4 of that appeal submission, reference is made to the decision dated 3 February 2009 and the copy of that decision is attached to the appeal submission as Tab No 20.  As was noted above, there is nothing inherently wrong with the decision dated 3 February 2009 in itself.  For the purposes of the analysis above, and subject to further comments below, it is clearly a decision which altered the decision giving entitlement to HB in the first place, such alteration by way of revision.

 

49.   It seems to me that the appeal tribunal was alert to the requirement to consider whether the appellant had an entitlement to HB during the relevant period.  It reminded itself that the condition of entitlement to HB set out in section 129(1) of the Social Security Contributions and Benefits Act 1992, as amended, required that the appellant would only be entitled to HB if he was liable to make payments in respect of a dwelling which he occupied as his home.  Having undertaken a detailed review of all of the evidence which was available to it, the appeal tribunal concluded that the appellant ‘… did not occupy [‘Address A’] as his home during the period which he claimed Housing Benefit.’  Earlier the appeal tribunal had found that the appellant had applied for and had been awarded an entitlement to HB for the period from 3 February 2003 to 5 March 2006 in respect of ‘Address A’.  Implicit within that reasoning is the agreement by the appeal tribunal that the NIHE was correct to revise the decision giving rise to entitlement to HB on the basis that the entitlement decision had been made in ignorance of or mistake as to a material fact.

 

50.   The appeal tribunal then turned to the question of whether there had been an overpayment of HB for the relevant period.  It concluded that there had been such an overpayment.  As was noted above, the period of the award and the amount of the overpaid HB are correctly noted by the appeal tribunal in both the decision notice and the statement of reasons for its decision, thereby curing the minor typographical error in the decision dated 16 February 2009.

 

51.   The appeal tribunal then considered whether the overpayment was recoverable from the appellant.  In so doing, it undertook an analysis as to whether the appellant knew the material fact that he did not reside at ‘Address A’ during the relevant period and, more significantly, whether it was reasonable for the appellant to disclose this material fact to the NIHE and whether he did disclose the material fact.  Why did the appeal tribunal consider this analysis to be necessary?

 

52.   In section 5 of the appeal submission, the appeals officer made the following submission:

 

‘Section 73(3)(b) of the Administration Act sets out the persons from whom recovery may be sought.

 

Regulation 98(2)(b) of the Housing Benefit Regulations (Northern Ireland) 2006 states, where an overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact (in either case, whether fraudulently or otherwise) by or on behalf of the claimant or any other person to whom housing benefit has been paid, the person who misrepresented or failed to disclose that material fact instead of, if different, the person to who the payment was made;

 

As a Housing Executive tenant Housing Benefit was credited to (the claimant’s) rent account.

 

It is my submission that for the period 03/02/03 to 05/03/06 (the claimant) was overpaid Housing Benefit amounting to £7,120.65 and this is recoverable from him as he failed to disclose the material fact that he was not occupying [‘Address A’].

 

53.   In short, the appeals officer was submitting that the overpayment of HB for the relevant period should be recoverable from the appellant.  As the appellant had never actually been paid any HB during the relevant period – the HB being credited to his rent account as a Housing Executive tenant – the appeals officer was also submitting that under the ‘recoverability’ provisions within the Housing Benefit Regulations (Northern Ireland) 2006, as amended, the HB should not be recoverable from the NIHE, as the appellant’s ‘landlord’.

 

54.   Section 73(3)(b) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, provides that:

 

’73 (3) An amount recoverable under this section shall be recoverable—

 

      …

 

(b) where regulations so provide, from such other person (as well as, or instead of, the person to whom it was paid) as may be prescribed.

 

55.   Regulation 97(1) of the Housing Benefit Regulations (Northern Ireland) 2006 provides that:

 

‘97(1) Any overpayment, except one to which paragraph (2) applies, shall be recoverable.’

 

56.   The exception in paragraph (2) does not apply in the instant case.

 

57.   Regulation 98(2) of the 2006 Regulations provides that:

 

‘98(2) For the purposes of section 73(3)(b) of the Administration Act (recovery from such other person, as well as or instead of the person to whom the overpayment was made), where recovery of an overpayment is sought by the Executive—

 

(a) subject to paragraph (1) and where sub-paragraph (b) or (c) does not apply, the overpayment is recoverable from the claimant as well as the person to whom the payment was made, if different;

 

(b) in a case where an overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact (in either case, whether fraudulently or otherwise) by or on behalf of the claimant, or by or on behalf of any person to whom the payment was made, the overpayment is only recoverable from any person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made;

 

(c) in a case where an overpayment arose in consequence of an official error where the claimant, or a person acting on the claimant’s behalf, or any person to whom the payment was paid, or any person acting on their behalf, could reasonably have been expected, at the time of receipt of the payment or of any notice relating to that payment, to realise that it was an overpayment, the overpayment is only recoverable from any such person instead of, if different, the person to whom the payment was made.’

 

58.   It seems to me that the NIHE decision-maker and the appeal tribunal could have determined that the overpayment of HB for the relevant period was recoverable from the claimant under regulation 98(2)(a).  It appears, however, that the decision-maker focused instead on the application of regulation 98(2)(b) as the appropriate recoverability provision permitting recovery from the claimant.  As was noted above, the appeal tribunal undertook an analysis as to whether the appellant knew the material fact that he did not reside at ‘Address A’ during the relevant period and, more significantly, whether it was reasonable for the appellant to disclose this material fact to the NIHE and whether he did disclose the material fact.  It is clear that it was doing so for the purpose of the potential application of regulation 98(2)(a).  I find no fault with the appeal tribunal’s analysis which was wholly sustainable in light of the factual circumstances of the case.

 

59.   I return to the question of notification of the decision dated 3 February 2009.  As was noted above, the effect of my comments in paragraph 25 of C1/07-08(HB) is that an appeal tribunal, dealing with an appeal against a HB overpayment decision will have to remind itself that it is required to identify two decisions – one which altered the decision giving entitlement to HB in the first place, such alteration by way of revision and supersession and a subsequent decision which raised an overpayment of HB.

 

60.   There is no principle in law which requires that there is separation in the decision-making process where social security benefit is submitted to have been overpaid and so that there are separate entitlement and overpayment decisions made at different times and reduced to or laid out in separate decision notices.  Equally there is no principle in law which requires separate notification of separate decisions.

 

61.   Nonetheless, in KM-v-Department for Social Development (IS) ([2011] NICom 230, C5/11-12(IS)), I said the following, at paragraph 51 to 52 of the decision:

 

‘51.            It is clear, therefore, in a factual situation such as exists in the instant case, that there has to be close scrutiny of a document which is notification of an overpayment or recovery decision to determine whether it could be construed as encompassing an effective notification of prior entitlement decision which had not, in fact, been notified.  I agree that it has to be clear to any reasonable person receiving the letter of notification of the overpayment decision that there existed a separate entitlement decision, such as a supersession, against which he could appeal.  There would have to be an express statement to that effect or it would have to be by reasonably clear implication.

 

52. In Hamilton, for the Court of Appeal, scrutiny of the letter which amounted to notification of the overpayment or recovery decision led to a conclusion that it was sufficient also to encompass a notification of an entitlement decision on supersession, which had not previously been notified.  That need not always be the case, and it is important for decision-making authorities to be vigilant about the background and contents of the letter of notification of a recovery decision to determine whether it can be construed as having a broader notification effect.’

 

62.   ‘Hamilton’ is a reference to the decision of the Court of Appeal in Hamilton v Department for Social Development ([2010] NICA 46).

 

63.   In the instant case, I am satisfied that the contents of the correspondence dated 16 February 2009, is sufficient to notify the appellant both that he did not have an entitlement to HB for the period from 3 February 2003 to 5 March 2006 and that HB had been overpaid for that period and was recoverable from him.  The first paragraph notifies the appellant that his application to HB had had to be reassessed.  The appellant is also informed in that correspondence of his right of appeal.  Subsequently, and following receipt of correspondence from the appellant, he was given an oral explanation of the decision, and was forwarded a further copy of the notification letter.  Following receipt of his letter of appeal the decision was reconsidered but was not changed.  Finally, the appellant was provided with a copy of the appeal submission which contained a copy of both of the decisions dated 3 February 2009 and 16 February 2009.

 

64.   In GL-v-Department for Social Development (IS) ([2012] NICom 328, C6/12-13(IS)), Commissioner Stockman noted, at paragraph 31:

 

31. It does not necessarily follow that a failure to comply with a procedural requirement will render a decision a nullity (see, for example, R v Secretary of State for the Home Department, ex parte Jeyeanthan [2000] 1 WLR 354).  The approach of the Upper Tribunal (Immigration and Asylum Chamber) to a failure to comply with the Immigration Notices Regulations 2003 is relevant and instructive.  The Immigration Notices Regulations provide that a notice of an immigration decision that is appealable must contain certain details including a statement of the right of appeal and how it can be exercised.  However, it can be seen from LO(Nigeria) [2009] UKAIT 00034, a decision of Deputy President Ockleton, that, where an appeal is brought from a deficient decision, the appellant is deemed to have waived the failure to have advised him of his right of appeal.  That seems to me to be a practical and sensible approach.  Where the applicant has in fact brought his appeal, as here, and can therefore show no detriment from the Department’s failure to comply with a procedural requirement, I do not consider that any material error of law arises on the basis of procedural failings alone.  The decision at Tab 11 and its notification at Tab 12 are in clear terms.  The applicant cannot appeal and at the same time argue that the decisions are inherently flawed for the procedural failing of not advising him of his right to appeal.’

 

65.   Accordingly, I am satisfied that there has been an appropriate notification of the scope, intent and effect of the decision dated 3 February 2009.

 

66.   In her further written observations on the application for leave to appeal, Miss Quinn submitted the following:

 

‘Since my initial submission dated 5 August 2011 further information has come to light.

 

In paragraph 8 of my original submission I advised that records show that a renewal claim form was received from (the claimant) on 4 April 2004 but had been mislaid.  This statement was based on information given by the Northern Ireland Housing Executive (the Executive) who advised that a computer printout (Tab 31) indicated that (the claimant’s) renewal claim form was returned on  4 April 2004 however the Executive have now advised that this does not necessarily indicate that the renewal claim form was received.

 

The Executive have since provided the Department with a detailed explanation of the procedures within its offices around April 2004 when benefit periods were abolished (see paragraph 15 of observations dated 5 August 2011) and it also had to deal with the implementation of a new computer system (Tab 32).  The Executive provided a copy of the instructions issued to staff at this time.  (Tab 33).

 

It transpires that at this time the Executive used computer “workarounds” to ensure that there was no delay in paying housing benefit.  The volume of renewal claims that were received at this time could not be processed in time for payments to continue so information was input to the computer en-masse as if renewal claims had been received so that payment could continue.  The renewal forms were then dealt with on a gradual basis and checked against both computer and paper records.  The computer printout supplied by the Executive for (the claimant’s) case (Tab 31) typifies the workarounds which were used in order to ensure that housing benefit awards continued from and including 5 April 2004.

 

In the event that the Executive did not receive a renewal claim form then further action had to be taken in the following order (Tab 33):

 

                                      i.        Reminder letter to claimant

                                    ii.        Telephone call to claimant

                                   iii.        Home visit with claimant

                                   iv.        Suspension of benefit

 

As none of the above actions were taken on (the claimant’s) case I submit that this is a strong indication that (the claimant) did in fact return the renewal form.  In any event the Executive continued to pay housing benefit to (the claimant) up to and including 5 March 2006 when his tenancy was terminated.

 

If the renewal claim form was returned then my submission of 5 August stands.

 

If the renewal claim form in question was not returned by (the claimant) then I submit that an additional reason for revision would be appropriate for the decision awarding housing benefit from 5 April 2004 i.e.an additional mistake as to a material fact namely that no claim for housing benefit was made.  I submit however that this would not vitiate the decision that was made and as a consequence does not vitiate the tribunal’s decision.  I also submit that even in these circumstances the overpayment is still recoverable from (the claimant).’

 

67.   Miss Quinn went on to set out the basis on which she submitted that the decision which was made remained valid, that the decision of the appeal tribunal was not vitiated and the overpayment of the HB was recoverable from the appellant.  I accept that reasoning in its entirety.  Nonetheless, I am also of the view that it does not require to be applied.  That is because I accept that, on the balance of probabilities, a renewal claim form to HB was returned by the appellant making the claim from 5 April 2004 valid.

 

         Disposal

 

68.   The decision of the appeal tribunal dated 6 July 2010 is not in error of law.  Accordingly the decision of the appeal tribunal to the effect that an overpayment of HB for the period from 3 February 2003 to 5 March 2006 amounting to £7120.65 has been made and is recoverable from the appellant is confirmed.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

11 November 2013