UK Social Security and Child Support Commissioners' Decisions

 


Commissioner's file: CH 299 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss the appeal. The decision of the tribunal is not in error of law.
2. The claimant and appellant is appealing, with my permission , against the decision of the Manchester appeal tribunal on 25 November 2002 under reference U 40 072 2001 04552. The claimant is represented by Manchester Advice. The respondent is the Manchester City Council (the Council), acting though the Manchester Benefits Service, part of the City Treasurer's Department. As Manchester Advice is also part of Manchester City Council, I raised as an initial point the possibility of conflicts of interest. I am happy to record that the respondent had no objection to the appellant being represented by Manchester Advice. I am also happy to record that, on behalf of the appellant, Manchester Advice stated that there is a full independence of viewpoint between Manchester Advice and the City Treasurer's Department, and that this is required as a condition of part of its public funding.

Background to the appeal

3. This case is about excess council tax only. According to the submission to the tribunal, the Council decided that the claimant had been awarded council tax benefit of £600 in excess of entitlement between 13 July 1998 and 26 June 1999. (The original decisions awarding benefit and revising it have not been retained). This was because the appellant had delayed informing the Council that she had started work. It also decided that the excess council tax benefit for that period was recoverable. On behalf of the claimant, Manchester Advice objected that the claimant had told the City Treasurer's Department of her new job and that the Council had failed to act on this. Further, she had told the City Treasurer's Department again on 26 April 1999, and the Council had not acted on that either. That was official error, making the excess unrecoverable. Further, the claimant had been told in September 1999 that she had overpaid her council tax (not underpaid it) and she did not have to pay any more. There is an internal note authorising a refund of nearly £200.
4. The Treasurer's Department were asked to exercise discretion in not collecting the sum, and the Council was asked to consider a formal complaint about the Treasurer's Department conduct. In reply the Treasurer's Department acknowledged that the claimant had made her claim in person on 26 June 1998. But she had told it about her incapacity benefit, not her new job. At some point the Benefits Agency confirmed that the claimant had been receiving incapacity benefit continuously to 18 August 1998, but had started work on 6 July 1998 without notifying the Department. The claimant appealed the decision on excess benefit.
5. The main ground of appeal was that the Council had failed to take a review decision before recovering the excess benefit, in breach of section 71(5A) of the Social Security Administration Act 1992, or it had failed to produce sufficient evidence of it. It had failed to state the date of the decision it considered it had revised. Separately, the claimant contended that she had informed the Council of what was going on at the relevant times, save admitting that she was two or three weeks late in informing the Department about her new job. The appeal also criticised the delay from July 1998 to May 2000 in making the overpayment decision.
6. The Council accepted that the claimant did attend on 26 April 1999. She had made a renewal claim. But the reassessment of her benefit following this new claim did not take place until June 1999, so there was no official error. The Council made the overpayment decision in January 2000. It produced evidence from its staff that there had been a review of the original decision.
7. The tribunal confirmed the Council's decision (or, rather, it said it did but actually made a decision by reference to a different date). The tribunal accepted the facts as seen by the Council and that there had been a valid review of the entitlement decision.

Grounds of appeal

8. The first ground is that the tribunal erred in deciding that the whole of the overpayment was repayable, given that the Council were informed of the full facts some time before the overpayments stopped. The second ground is that the Council had itself erred in the way it dealt with the overpayments. In making a refund when it should have been offsetting it against the overpayment, the Council was either making an error or relying on an error by the Benefits Agency. The third ground is that the tribunal had acted unreasonably in interpreting the evidence to conclude that the claimant's visit to the Benefits Agency on 26 April 1999 was her first visit. The fourth is that it was unfair to ignore the fact that a tribunal decision in the claimant's favour had been set aside on the grounds that the tribunal had failed to provide reasons. It was unfair for her case to be reheard without reference to that fact.
9. I deal with the point about the previous tribunal separately. The appeal first went to a tribunal on 11 January 2002. The tribunal allowed the claimant's appeal. For some unrecorded reason the chairman of the tribunal was unable to produce a statement of reasons when asked to do so by the Council. The Council therefore asked for a set aside decision, and that was quite properly granted. I can understand why the claimant was annoyed that she found that, having won her appeal, she then lost at the second tribunal through no fault of her own. But that dealt efficiently with an appeal that was bound to succeed in the absence of a statement of reasons, and I see no fault on the part of the subsequent tribunal in not referring to that.

The submissions

10. In granting permission to appeal, I directed the parties to consider how "official error" in regulation 84 of the Council Tax Benefit (General) Regulations 1992 applies to specific periods of excess benefit.
11. The Council did not support the appeal. It argued that its practice was fully consistent with the way council tax benefit was awarded and with regulation 84 of the Council Tax Benefit (General) Regulations 1992 . It did not see the relevance of the refund in September 1999.
12. In reply, it was submitted that council tax benefit is a daily, not a weekly or yearly benefit, so should be stopped by reference to this. The point about the refund was explained. It was argued that no overpayment could be recovered after disclosure.

Entitlement, award and payment of council tax benefit

13. Liability of an individual to council tax in England is a daily liability: section 6(1), Local Government Act 1992. (That section, and this analysis, does not apply directly to Scotland. Since devolution, the analysis does not apply fully to Wales). Similarly, entitlement to any discount arises on a daily basis: section 11. Entitlement to council tax benefit is a daily entitlement: section 131(1), Social Security Contributions and Benefits Act 1992. However, that is subject to regulations 56 and 57 of the Council Tax Benefit (General) Regulations 1992. Regulation 56(1) sets the start date for any award as "the benefit week following the date on which that claim is made or treated as made". "Benefit week" means a period of 7 consecutive days commencing on a Monday and ending on a Sunday: Council Tax Benefit (General) Regulations 1992, regulation 2(1).
14. Regulation 57 of those Regulations provides that the benefit period (the period of an award) starts on the benefit week set in regulation 56 and continues for "such number of benefit weeks as the relevant authority shall determine having regard in particular to any relevant circumstances which the relevant authority reasonably expects may affect entitlement in the future" :regulation 57(2). This is subject by regulation 57(3) to a maximum of 60 weeks. Subject to that upper limit, the number of weeks of the award period is at the discretion of the local authority.
15. Separate legislation provides both that council tax and council tax benefit are not payable daily. The Council Tax (Administration and Enforcement) Regulations 1992 (as amended) make provision for the issue of bills to individuals liable for council tax at the beginning of each financial year on certain assumptions. They apply for the full year, although they may be revised. Payment is to be made against those bills in accordance with those Regulations. For example, many people pay monthly. In most cases the award of council tax benefit is given effect by discharging, fully or partly, the liability established, and therefore the requirement to pay, under those Regulations: Regulation 77(1)(a) of the Council Tax Benefit (General) Regulations 1992. That therefore applies for the whole (or balance) of each financial year.
16. When the question of a precise period in raised, there may be different periods of entitlement (arising daily), award (made weekly), and payment (by reference to financial years). So when the precise period of an excess of council tax benefit is raised, it may, depending on the issue, be determined on a daily, weekly or yearly basis.

What was the period of excess benefit in this case?

17. The chronology is as follows. It is not in dispute save as noted below. The claimant received incapacity benefit when she claimed council tax benefit on 26 June 1998. Her council tax benefit was calculated on that basis and she was given an award for the balance of that financial year, and another for the new financial year and the balance of her claim year. The decisions are missing, but are said to be from 22 June 1998 to 20 June 1999 (document 61). The claimant returned to work on 6 July 1998, but did not tell the Council. On 26 April 1999 the claimant made a renewal claim, then disclosing she had returned to work in July 1998. It was shown that she had been paid benefit until August 1998. The decision on excess benefit set the period of excess from 13 July 1998 to 26 June 1999. That decision was made on 17 May 2000.
18. The first question to be clarified is the period of entitlement to benefit to the claimant. The second question if the period of award reflecting that entitlement. The third, linked, question is the period for which there is now no entitlement by reason of a revised or further revised decision: regulation 83(1) of the Council Tax Benefit (General) Regulations 1992. The event triggering the award was the claim on 26 June 1998. That would suggest an award starting on Monday 29 June, but the papers suggest that Monday 22 June was taken as the start date. The event triggering the overpayment was the claimant 's return to work on 6 July 1998. The period of excess is not started until Monday 13 July. It would appear that this was the proper day for starting that period.
19. The final date is put in the decision as 26 June 1999 (document 1B). That appears to be a mistake. The tribunal (see below) took the closing date to be both that date and 20 June 1999, the date shown in the supporting papers. 20 June 1998 appears to be the date chosen by the Council for the end of the award made from 22 June 1998. Credit of benefit benefit was apparently ended on 20 June 1999 because the Council had not completed its assessment of her entitlement for the financial year 1999-2000 at that time. The next event was a repayment to the claimant of £193 excess council tax in September 1999. Looking again at the calendar, the relevant Sundays were 20 and 27 June 1999. It is entirely consistent with the proper application of the law that the period ended on 20 June 1999.
20. Should any other date, for example 26 April 1999, be substituted for that final date? No. The period set is the period of award of the benefit. The period of the excess is the period, not exceeding the period of award, when a revising decision establishes that there was no entitlement. As the award is made and credited to the claimant by reference to benefit weeks, it seems entirely appropriate that the decision establishing excess benefit should be by reference to benefit weeks, although the regulations do not deal with that point expressly. The question whether the excess, once established, is recoverable is, however, separate.
21. The tribunal's statement leaves the issue of dates unclear. It finds that the claimant received "rebate" to 26 June 1999. It also finds that entitlement ended on 23 June 1999 (though it is not clear that it was actually considering entitlement at that point). I can see no justification for either date (both of which appear to be inconsistent with the evidence in the papers and with the law), and the tribunal does not explain them. Nor does it make any other finding before going on to set the dates in its decision as 13 July 1998 and 20 June 1999. The tribunal heard the challenge made for the claimant against the absence of the formal copies of the decisions under review and the reviewing decisions. It accepts (as it was entitled to on the specific evidence put before it) that there were original decisions and reviewing decisions about the claimant's entitlement. But it failed to find the terms of those decisions, by failing to deal properly with the dates. Further, its statement of reasons appears inconsistent as to the dates with the decision it confirmed.
22. Does that matter? I am satisfied that in this case it does not. The dates in the tribunal decision were fully consistent with the legislation and most of the evidence. The other dates were consistent with neither. It may be that the wrong dates in the statement were errors correctable as accidental errors. In any event, I am satisfied they are not material, because the material dates (and, assuming that the Council applied the legislation correctly, the only appropriate dates) were those in the decision. Had the decision itself contained a wrong date (as the Council's submission did) that would have been material, and I would have allowed the appeal.
23. Is the excess benefit recoverable for the whole period of the excess? Regulation 84 makes it plain that it is recoverable subject to the exception in paragraph (2). If the excess was allowed in consequence of an official error, then it is not recoverable. That is subject to a further condition:

"the claimant or a person acting on her behalf or any other person to whom the excess benefit is allowed could not, at the time the benefit was allowed or upon the receipt of any notice relating to the allowance of that benefit, reasonably have been expected to realise that it was excess benefit."

24. In this case "the time the benefit was allowed" was at the date of the original decision, 22 July 1998. At that time the claimant does not dispute that she was working while claiming incapacity benefit. The tribunal rejected the submissions that the claimant had told the Council before the date of decision. On that basis, I do not see how the concept of "official error" can be applied here. If it were applicable, I see no basis for arguing that the further condition was met.
25. I agree with the Council that the return of council tax to the claimant as overpaid is not relevant to this series of events. That is a matter of the payment of council tax, not the payment of, or credit for, council tax benefit. Those operations are subject to different sets of rules. Nor is the delay in making the decision about the overpayment relevant here, though in principle delay may be maladministration and therefore an error or mistake. For these reasons I am satisfied that there is no material error of law in the decision of the tribunal, despite the loss of important decisions, the muddle in the submissions to the tribunal, and the errors of the tribunal's statement about the dates.
26. I see no substance in the other grounds of appeal, as they are mainly factual issues and the tribunal had evidence for its findings of fact (other than the dates).

The operative dates for council tax benefit decisions

27. I add a final general comment for future tribunals, as it not entirely surprising that the tribunal became muddled over the dates in this case. When dealing with cases of excess council tax where the exact terms of original decisions are missing, a tribunal must take care to establish the precise dates for the start and end of the operative period of a decision. It may need to consider the following issues separately:

(a) If the question is one of liability to council tax or entitlement to council tax benefit, then the decision should be by reference to the precise periods of liability or entitlement on a day by day basis.

(b) If the question is one of the period of award of benefit (or of withdrawal of an award) then the period should consist of whole "benefit weeks" starting on the Monday following the first day of entitlement and ending on a Sunday chosen by the local authority.

(c) If the question is one of payment of tax, or of payment or credit of benefit, then reference may need to be made separately to each financial year (April 1 to March 31).

David Williams

Commissioner

19 August 2003

[Signed on the original on the date shown]