UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CH_2638_2005 (02 November 2006)

CH/2638/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the local authority's appeal against the decision of the Southampton appeal tribunal dated 2 February 2005. I set aside the decision of the tribunal and substitute the decision that the tribunal should have given, which is to set aside the decision of the local authority dated 21 October 2004 to the effect the landlord was liable to repay £838.75 overpaid housing benefit. However, this does not preclude the local authority from making a fresh decision as to the recoverability of the overpayment.

REASONS

2. This case is concerned with the recovery of an overpayment of housing benefit. The claimant was entitled to housing benefit from the local authority, Gosport Borough Council, at the rate of £76.25 pw from 5 April 2004 and the benefit was paid directly to the landlord. On 13 October 2004, Gosport Borough Council was informed that the claimant had made a claim for housing benefit from Eastleigh Borough Council with effect from 27 July 2004. Accordingly, it determined that he had ceased to occupy the accommodation in its own area as his home from 25 July 2004 and that the claimant's entitlement ceased from that date. It also determined that £838.75 had been overpaid in respect of the eleven weeks from 26 July 2004 to 10 October 2004 and, by a decision dated 21 October 2004, it sought recovery of that overpayment from the landlord. The landlord appealed, saying that the claimant had not given any notice that he was leaving. He called two witnesses who gave evidence to the tribunal that they had visited the property on 15 September 2004 to carry out work there and that the claimant had admitted them and that there had also been children present.
3. The tribunal found that the claimant was occupying the accommodation in Eastleigh as his home but decided that the claimant could not reasonably have avoided liability in respect of both the Eastleigh property and the Gosport property for four weeks, because of his liability to give four weeks' notice in respect of the Gosport property. it therefore held that the claimant had been entitled, under regulation 5(5)(d) of the Housing Benefit (General) Regulations 1987 (SI 1987/1971) to housing benefit for four weeks from 26 July 2004 and there had been an overpayment for only the seven weeks from 23 August 2004 to 10 October 2004, which it held was recoverable from the landlord.
4. The local authority now appeals against the tribunal's decision with the leave of the legally qualified panel member who constituted the tribunal. The landlord has not taken any part in the proceedings.
5. I agree with the local authority that there was insufficient evidence to support the tribunal's decision that the claimant could not reasonably have avoided liability to pay rent in respect of two properties. The requirement to give notice was a material consideration but it only made dual liability inevitable if the claimant had been bound to take a tenancy of his new home forthwith and, as the local authority says, in the absence of any evidence from the claimant, there was no evidence at all as to the circumstances leading to the move. The local authority had informed the claimant on 18 October 2004 that it had been decided that he was not entitled to housing benefit from 26 July 2004 and it told the tribunal that enquiries had been made of the claimant without success. I note that the letter dated 18 October 2004 was sent to the Gosport address rather than Eastleigh address and, if the enquires were also made to the Gosport address, the lack of response may not be surprising. There does not appear to have been a decision seeking recovery of the overpayment from the claimant, although he was notified that the Overpayment Recovery section would "contact you separately about repaying this debt".
6. For reasons explained in CH/4234/2004 (to be reported as R(H) 6/06), the local authority should have made a decision to the effect that the overpayment was recoverable from both the landlord and the claimant. The value of making such a decision against all those from whom an overpayment may be recovered is illustrated by this case because the threat of recovery might have prompted the claimant to put forward any explanation for his actions that he may have had. It seems to me that the landlord may have been disadvantaged by the local authority's failure to make a decision against the claimant as well as against the landlord. It was the landlord who suffered the consequences of there being a lack of evidence to support a contention that the claimant might have remained entitled to housing benefit in respect of the Gosport address despite having moved to Eastleigh (see Kerr v. Department for Social Development [2004] UKHL 23; [2004] 1 WLR 1372, also reported as R 1/04 (SF)).
7. The tribunal erred in law in making a finding unsupported by evidence and in failing to consider whether the landlord was the only person from whom the overpayment was recoverable.
8. The tribunal had no power to give the decision the local authority should have given and neither do I, because the claimant has not been a party to these proceedings. As in CH/4234/2004, the tribunal could only have set aside the local authority's decision and I can only give a decision to that effect and leave the local authority to make a fresh decision as to the recoverability of the overpayment. Unless any more evidence is forthcoming, it will be entitled to proceed on the basis that benefit was overpaid for eleven weeks, rather than just seven.

(signed on the original) MARK ROWLAND

Commissioner

2 November 2006