UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under paragraph 8(4) and (5)(a) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000.
2. 1. The decision of the Birkenhead appeal tribunal under reference U/06/062/2001/00187, held on 16^th April 2002, is erroneous in point of law.
3. 2. I set it aside and give the decision that the appeal tribunal should have given without making fresh or further findings of fact.
4. 3. My decision is:

The £604 overpayment of housing benefit made to the claimant in respect of the inclusive period from 22^nd November 1999 to 15^th October 2000 is recoverable from the claimant.

The appeal to the Commissioner

5. This case concerns the recoverability of an overpayment of housing benefit. The overpayment arose, because the local authority failed to take the claimant's wages into account in calculating her entitlement.
6. The case comes before me on an appeal to a Commissioner against the decision of the appeal tribunal brought with my leave. The appellant is the housing benefit claimant. The respondent is the Metropolitan Borough of Wirral.
7. The appellant has asked for an oral hearing. No reason was given for the request. I refuse it. The issues are sufficiently clear for me to deal with them without oral submissions.

The legislation

8. The relevant legislation is regulation 99 of the Housing Benefit (General) Regulations 1987. Paragraph (1) of that regulation provides that an overpayment is recoverable unless paragraph (2) applies. Paragraph (2) provides:

'Subject to paragraph (4), this paragraph applies to an overpayment caused by official error where the claimant or the 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 overpayment, reasonably have been expected to realise that it was an overpayment.'

9. Paragraph (4) does not apply on the facts of this case. It was conceded by the local authority that the overpayment was caused by official error.

The issue

10. The case raises this issue: could the claimant reasonably have been expected to realise that she was being overpaid? A tribunal should deal with this issue in three stages.

First stage – the legal test

11. As the first stage, the tribunal must direct itself correctly on the law.
12. The tribunal has to determine whether the claimant could 'reasonably have been expected to realise that it was an overpayment'. It is not relevant whether the claimant could reasonably have been expected to realise the amount by which she was being overpaid. Nor is it relevant whether the claimant could reasonably have been expected to realise that there might be an overpayment. What matters is whether the claimant could reasonably have been expected to realise that the amount she was receiving definitely contained some element of overpayment.
13. The tribunal directed itself correctly on these points. The points emerge from the words of the legislation itself. The decision of Mr Justice Nolan in R v Liverpool City Council, ex parte Griffiths (1990) 22 Housing Law Reports 312 at page 317 is regularly cited. Citation of that decision is unnecessary and can be unhelpful. The facts were very different from any that will come before appeal tribunals - they concerned the estimates of entitlement to benefit that were used in the transition to the housing benefit scheme from April 1988. Also, the point for which the decision is quoted is actually the argument of counsel recorded by Mr Justice Nolan.
14. However, the tribunal also directed itself that

'In deciding what could reasonably be expected of [the claimant], I concluded that it was important not to treat the forms as if they were the wording of a Statute. Nor should I impute to [the claimant] any more knowledge about the housing benefit scheme than an ordinary reasonable person might have.'

15. I agree with the first sentence of that passage. I do not understand the second. I am familiar with the concept of a reasonable man. I assume that the reasonable person is the politically-correct, non-sexist equivalent. I have no idea what an ordinary reasonable person is. The reasonable person is anything but ordinary. Even if the concept of an ordinary reasonable person were possible, which I doubt, I would not want to introduce it into law. It must inevitably bring with it the possibility of an extraordinary reasonable person. That is either a tautology or a concept that would boggle even a legal mind. At the very least, this passage is inadequate to convey to me, let alone to a claimant, the test that the tribunal applied. In that respect, the tribunal went wrong in law.
16. It also went wrong in law by applying the wrong test. The question of imputation of knowledge to the claimant did not arise. The issue for the tribunal was what could reasonably be expected of the claimant. There may be exceptional cases in which it is reasonable to expect a claimant to find out more about the housing benefit scheme, probably from the local authority or (possibly) elsewhere. If those cases exist in reality rather than theory, they will involve claimants with a special knowledge of the scheme, such as former housing benefit officers. They will, in any event, be rare. This case is not one of them. In the overwhelming majority of cases, there is no scope for imputing any knowledge to the claimant. The issue will be what could reasonably be deduced from the information available to the claimant. What a claimant could reasonably have been expected to realise is a question of fact. It depends on the information available to the person and on an analysis of what that information could have revealed. Identifying and analysing that information are the second and third stages.

Second stage – the information available to the claimant

17. As the second stage, the tribunal must identify the information that the claimant had about the housing benefit scheme.
18. It will seldom be the case that the claimant is familiar with any more than the broad outlines of the housing benefit legislation. In practice, most claimants can only be expected to realise that an overpayment is being made as a result of information provided to them. That information may be provided in a number of ways. It may come from the local authority, an advice agency or an independent body. It may be given orally. It may be found on a website. It may come from the claimant's previous experience of the scheme. It may come from documents provided by the local authority in connection with claims, such as leaflets, claim forms and decision notices. It may come from a publication, like those of the CPAG. This is not intended to be an exhaustive list. In practice, the problems of proving that the claimant received information from an outside source or from the local authority orally or from the web probably prevent the local authority relying on those sources. It is likely that most cases will involve considering what the claimant should have realised from previous experience of the scheme and the documents provided by the local authority.
19. In this case, as far as I know, the claimant had no previous experience of the scheme. The local authority did not inform the tribunal of any standard leaflets that are issued with claim forms. As the case came before the tribunal, and as it comes before me, there are only two sources of information that were available to the claimant. The first was her claim form. It contained questions about her income, including her wages. She was required to provide wage slips or an employer's certificate of earnings. The second document was the decision notice setting out how the claimant's housing benefit had been calculated. It contained two warnings:

'YOU MUST CHECK THE FIGURES CAREFULLY AND TELL ME IF ANY ARE WRONG.'

'YOU MUST INFORM ME OF ANY OF THE FOLLOWING CHANGES IN YOUR CIRCUMSTANCES

1. Changes in income of yourself and/or partner separately or jointly.'

The calculation shown in the notice included these heads:

'INCOME
WEEKLY UNEARNED INCOME
Working families tax credit – no disregard
child benefit first child

Total income'

20. The tribunal did not go wrong at this stage. It is true that the tribunal did not inquire whether the local authority had given other information to the claimant, for example in the form of an explanatory leaflet. But I do not fault it for that. The legal burden of proving recoverability was on the local authority. If it wanted the tribunal to take account of additional information, it should have put it before the tribunal.

Third stage – the significance of the information

21. As the third stage, the tribunal must determine what the claimant could reasonably have realised from the information available. As the claimant in this case is of normal intelligence, I do not need to decide the extent to which, if at all, the claimant's ability to analyse the information is taken into account.
22. The tribunal went wrong in dealing with this third stage. It did not sufficiently analyse the information available to the claimant in order to distinguish between realising that there had been an overpayment and that there might have been an overpayment.
23. As the claimant had made a claim for housing benefit, it was reasonable to infer that she knew that the scheme provided help with rent for those on relatively low incomes. She could have realised from that that her income would be relevant to her entitlement. From the claim form, the claimant could have realised that she was not barred from entitlement by being in work and that her wages would be relevant. As she was asked about the amount of her wages, she could have realised that the amount would be relevant. That was reinforced by the second warning I have quoted from the decision notice. The need to report a change in income showed that the amount was relevant.
24. So, the claimant could have realised that the amount of her earnings was relevant. But what could the claimant have realised of their relevance? If she had had a previous award, it is possible that she could have realised their relevance. For example: she might have previously claimed on similar earnings, which the decision notice had shown as reducing the amount of housing benefit. But, as far as I know, this was her first claim. If she had been given information about the structure of the scheme, it is possible that she could have realised the relevance of her earnings. For example, a leaflet might have contained some worked examples. But no such document was put before the tribunal. The form of decision notice did not alert the claimant to an omission. For example, it did not have a head for earnings but with no amount shown.
25. There were some considerations which might suggest to the claimant that wages, while potentially relevant, were not relevant in her circumstances. Her wages were low. It is not impossible that a housing benefit scheme would disregard low levels of income. Also, she was in receipt of tax credit for low income families. It is not impossible that a housing benefit scheme might take that into account by ignoring her actual income.
26. Against these considerations is the fact that the tax credit and child benefit were both used to reduce the amount of housing benefit. It would be surprising, although not impossible, if earnings were nonetheless disregarded. It is this factor which has persuaded me that the claimant could reasonably have realised that there was a mistake in the calculation of her benefit and that that mistake was to her advantage.

Conclusion

27. The claimant was not in receipt of housing benefit when she made her claim. Her entitlement was calculated and notified to her on 8^th February 2000. The first payment, including arrears, was paid into her landlord's bank account two days later. She had not been paid any benefit on account. So, at the time of both receipt and payment she could have realised that the payment included an overpayment. The overpayment is recoverable from her.

Outcome

28. I allow the appeal and substitute a decision for that of the tribunal. It is the same as the tribunal's decision, but is based on sounder reasoning and analysis. It confirms the decision of the local authority that the overpayment is recoverable from the claimant. The manner of recovery is a matter for the local authority.

Signed on original

Edward Jacobs Commissioner 11th September 2002