CH_411_2007 [2008] UKSSCSC CH_411_2007 (25 February 2008)

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Cite as: [2008] UKSSCSC CH_411_2007

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CIS/34/2006

CIS/735/2007

CH/411/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

In appeal CIS/34/2006, the Secretary of State's appeal is allowed. The decision of the Leicester appeal tribunal dated 5 August 2005 is erroneous in law. I set it aside and substitute a decision that the claimant was not entitled to income support on and from 28 June 2004.

In appeal CIS/735/2007, the Secretary of State's appeal is allowed. The decision of the Leicester appeal tribunal dated 1 November 2006 is erroneous in law. I set it aside and substitute a decision that the claimant was not entitled to income support on and from 14 February 2005.

In appeal CH/411/2007, Leicester City Council's appeal is allowed. The decision of the Leicester appeal tribunal dated 1 November 2006 is erroneous in law. I set it aside and (a) substitute a decision that the claimant was not entitled to housing benefit and council tax benefit on and from 1 November 2004 and (b) remit the issue of the extent to which any overpaid benefit is recoverable to a differently constituted tribunal for determination.

REASONS

The first income support appeal - CIS/34/2006

The claimant is a woman of Norwegian nationality born in 1963. She came to the United Kingdom from Norway in March 2004, accompanied by her daughters born in 1992 and 1998. On 28 June 2004 the claimant claimed income support. In July 2004 the Department decided that the claimant's applicable amount was nil, on the grounds that she did not have a right to reside in the UK and was accordingly to be treated as not habitually resident in the UK; this was pursuant to regulation 21(3G) of the Income Support (General) Regulations 1987, as it then stood.

The claimant appealed against that decision, which was reconsidered but not changed on 18 January 2005. On 5 August 2005 the appeal tribunal allowed the claimant's appeal, along with a number of similar appeals, holding that the claimant was lawfully resident in the United Kingdom as a matter of national law and that the requirement of a right to reside was incompatible with article 12 of the EC Treaty and could not be applied to nationals of the European Union. The tribunal also decided that the right to reside test did not apply to the claimant as she was not seeking to be 'treated as' habitually resident but rather seeking to be recognised as habitually resident in fact. The tribunal found that the claimant was habitually resident in fact.

The Secretary of State appeals against the decision and has sought leave to appeal from the commissioner, on the grounds that the purported grant of leave by the Chairman did not comply with the Social Security and Child Support (Decisions and Appeals Regulations) 1999. The appeal was stayed by direction of a Legal Officer pending the outcome of other test case appeals concerning the 'right to reside' test.

The claimant's very competent representative has now conceded on her behalf that the tribunal's decision was erroneous in law in the light of the decision of the Court of Appeal in Abdirahman v Secretary of State [2007] EWCA Civ 657 (page 30 of the file in that appeal). Accordingly all I need to do is to set the decision aside and substitute a decision that the claimant was not entitled to income support from 28 June 2004. I do not need to consider the Secretary of State's other grounds of appeal at pages 17 and 20 of the file. I grant the application for leave to appeal so far as necessary.

As a Norwegian national, the present claimant is not an EU citizen (Norway being in the European Economic Area but not the EU); this is not, however, relevant since Abdirahman holds that the legal position of non-EU EEA nationals is not materially different to that of EU citizens.

The second income support appeal - CIS/7335/2007

Before her first appeal was heard by the appeal tribunal, the claimant made a fresh claim for income support on 14 February 2005. On 9 March 2005 her claim was accepted and she was awarded income support with effect from 14 February. The Secretary of State says that this was done without the case being referred to the specialist decision-makers who dealt with cases of 'persons from abroad'. On 1 June 2005 the award was reconsidered and purportedly revised on the grounds that the claimant did not have a right to reside in the United Kingdom. The Secretary of State is unable to locate any but a few of the papers relating to this claim or the March and June decisions.

In March 2006 the claimant's representative sought leave to appeal out of time against the revised decision. The application was treated as a late application for revision of the June decision and was accepted, and on 2 August 2006 the revised decision was reconsidered but not changed. On that occasion the decision-maker relied on the decision of a tribunal of commissioners in CIS/3573/2005 (one of the decisions, adverse to claimants, that was unsuccessfully appealed in Abdirahman).

The claimant appealed to the appeal tribunal with the assistance of the same representative. The grounds of appeal were, first, procedural – that no grounds existed for revision or supersession of the March award – and, secondly, substantive – that the claimant had a right to reside and was habitually resident in the United Kingdom. The claimant's representative now accepts that that second ground cannot succeed in the light of Abdirahman.

On the procedural issue, the claimant's submissions to the tribunal argued that the only ground for revision of a decision set out in regulation 3 of the Social Security and Child Support (Decisions and Appeals Regulations) 1999 that might conceivably apply to the case was regulation 3(5), but that neither of the regulation 3(5) grounds of 'official error' or 'ignorance of, or mistake as to, a material fact' was made out. The failure to refer the case to a specialist decision-maker was not an official error since the legislation did not establish any different categories of decision-maker. The March decision might be wrong in law in the light of CIS/3573/2005, but such an error of law was expressly excluded from the definition of official error since it was 'an error of law which was shown to be such an error by virtue of a subsequent decision of a Commissioner'. As to regulation 3(5)(b) the claimant submitted that, since the Department could not establish the factual basis upon which the decision was taken, it could not establish ignorance of or mistake as to a material fact. Regulation 3(5)(c) did not apply to income support.

The claimant further submitted that it was not open to the tribunal to recharacterise the June decision as a supersession decision because the only available ground for supersession – error of law or ignorance of or mistake as to a material fact – did not apply. The Department could not establish a mistake of fact for the reasons already given and could not show that the March decision was erroneous in law given that, at the time it was made, tribunals were regularly holding that people in the claimant's circumstances did have a right to reside, as the tribunal subsequently did in the claimant's own first appeal.

The appeal came before the appeal tribunal, jointly with the housing and council tax benefit appeal to which I refer below, on 1 November 2006. The tribunal rejected the substantive argument that the claimant had a right to reside, the chairman holding himself bound by CIS/3573/2005. The claimant's oral submissions appear to have followed her written submissions that I have summarised; the Secretary of State's representative relied on the official error of failing to refer the case to a specialist decision-maker and alternatively submitted that the implicit decision in March 2005 that the claimant had a right to reside involved an error of fact.

The tribunal allowed the claimant's appeal on the procedural arguments, the chairman holding that there had not been an official error since the decision-maker who made the award had the authority to decide claims for income support and his failure to comply with internal instructions to refer the case to the specialist team had led to a failure 'to elucidate appropriate information on the claim and/or from the claimant', which was not official error, applying R(SB) 10/91 and R(SB) 2/93. In the absence of information as to the factual basis of the decision, ignorance of or mistake as to material fact could not be established. Moreover, whether a person has a right to reside is a question of law.

As to supersession for error of law, the tribunal held that this was simply a case where a subsequent decision-maker had taken a different view of the facts for reasons which were unclear; that did not amount to error of law, applying R(I) 3/75. The tribunal added that section 27(3) of the Social Security Act 1998 gave only prospective effect to the decision in CIS/3575/2005. The effect of the tribunal's decision was that the March 2005 award remained in place. The Secretary of State appeals against that decision, with the leave of a chairman.

The housing and council tax benefit appeal - CH/411/2007

The claimant also made a claim for housing benefit (HB) and council tax benefit (CTB) on 26 October 2004. This was after her first (unsuccessful) claim for income support and before either her second (successful) claim for income support or her successful appeal to the appeal tribunal against the original refusal. She said on the claim form that was waiting to hear about income support.

Her claim was initially rejected but, after she produced to the local authority the Department's letter of 9 March 2005 informing her of the award of income support, the decision was revised in April 2005 so as to grant HB with retrospective effect from 1 November 2004 (see page 35 of the file). The claimant did not inform the local authority of the Department's June decision to revise the award nor, presumably, of her successful first income support appeal in August 2005. On 1 September 2005 the local authority awarded CTB, also with effect from 1 November 2004.

The local authority learnt from the DWP of the Department's revision in June 2005 of the March 2005 income support decision; it does not seem that the local authority was told of the claimant's success in her first income support appeal in August 2005. On 12 September 2005 the claimant was notified that payment of HB and CTB was suspended and was asked to provide proof of her income. On 7 November 2005 the claimant was told by letter that she had been overpaid HB and CTB in the period since 21 February 2005 in an aggregate amount of just over £3,000. This would either be recovered from future benefit or the claimant would be sent an invoice.

The claimant wrote a letter of appeal in December 2005, saying she did not understand what had happened, suffered from mental health problems and had no income. The local authority replied in January 2006 saying that the claimant's income support had been ended because she was considered to be a person from abroad and that it was necessary for the authority to establish whether she was habitually resident. She was told to arrange an appointment for a habitual residence test within one month. An interview appears to have been arranged, which the claimant did not attend owing to the illness of one of her children. In February 2006 the claimant's representative wrote on her behalf saying he had been instructed to represent her and asking for copies of the local authority's decisions.

The claimant's appeal came before an appeal tribunal in June 2006; it was adjourned in order to be linked with the income support appeal. The claimant's representative made a written submission, submitting that if (as the claimant was arguing in the income support appeal) the DWP had not had power to remove the claimant's income support entitlement, then the claimant was entitled to HB and CTB for any period for which she was entitled to income support, but accepting that if the claimant was not entitled to income support on the grounds that she did not have a right to reside, then the same must apply to her HB and CTB claims. He submitted that the claimant was habitually resident and did have a right to reside, but accepted that the tribunal was bound by the decision of the Tribunal of Commissioners unless it was overturned by the Court of Appeal.

At the joint hearing of the two appeals in November 2006, the tribunal decided in the HB and CTB appeal that, having succeeded in her income support appeal, the claimant was entitled to HB and CTB. The tribunal's statement of reasons says that it was common ground that the decision in the income support appeal was determinative of the HB/CTB appeal.

The local authority's representative sought the setting aside of the decision on the grounds that there had been a misunderstanding; he had been told that the HB and CTB appeal would only be heard if the income support appeal failed, but had not inferred from this that the HB/CTB appeal would automatically succeed if the income support appeal succeeded. He further submitted that the decision on the HB/CTB appeal was wrong even if the decision on the income support appeal was right; this was because, despite the tribunal's decision that the claimant was entitled to income support, she was nevertheless not 'in receipt of' income support (within the meaning of the then regulation 7A(5)(d) of the HB (General) Regulations 1987 and its counterpart in the CTB (General) Regulations 1992) on 1 November 2006, at the time the tribunal gave its decision.

The claimant's representative responded saying that this did not amount to grounds for setting aside and the only course open to the local authority was to seek to appeal. He submitted that 'in receipt of' in the Regulations meant 'entitled' to, so the tribunal's decision on HB and CTB was right. He referred to the paucity of case-law on the point apart from paragraphs 38-39 of my decision in R(H) 9/04, which he said were obiter and probably wrong. A chairman declined to set the decision aside and the local authority wrote seeking permission to appeal, repeating the submission that the tribunal had been wrong because the claimant was not in receipt of income support at the time of its decision. A chairman granted the local authority leave to appeal to the commissioner in January 2007 and a Legal Officer gave the Secretary of State leave to intervene in support of the authority.

The issues for decision

The issues in CIS/34/2006 are agreed to have been resolved by Abdirahman, as noted above. The issues still requiring decision in the other two appeals seem to me to be as follows:

(1) whether in CIS/735/2007 the tribunal erred in law in concluding that no grounds for revision or supersession existed.

I have concluded, for the reasons set out below, that the tribunal did err in law. I find that grounds for revision of the March 2005 decision existed and substitute a decision that the claimant was not entitled to income support on and from 14 February 2005.

(2) whether in CH/411/2007 the tribunal erred in law in allowing the HB and CTB appeal on the grounds that her income support appeal had succeeded.

Since the tribunal's income support decision was erroneous in law, it was an error of law for the tribunal to rely in it as concluding the HB and CTB appeal. In order to give the decision that the tribunal ought to have given I need to decide

(3) whether the claimant was nevertheless not a person from abroad in the period between March 2005 and June 2005 because she was literally 'in receipt' of income support in that period although (in consequence of my decision on the first issue) she was not entitled to it;

In my judgment the words 'in receipt of income support' mean in receipt of a payment that the claimant was entitled to by way of income support. I substitute a revised decision that the claimant was not entitled to HB or CTB on and from 1 November 2004. In view of the local authority's decision to recover overpayments of HB and CTB, the issue then arises:

(4) whether any and, if so, how much of the overpaid HB and CTB is recoverable.

I remit this issue (if still live) to the tribunal.

(1) Revision of the March 2005 award of income support

Only regulation 3(5) of the Decisions and Appeals Regulations is in issue. It permits the Secretary of State to revise a decision which (a) 'arose from an official error' or (b) was made in ignorance of or based on a mistake as to some material fact and, as a result, was more advantageous to the claimant than it would otherwise have been. 'Official error' is defined in regulation 1 (so far as material) as an error by the Department which no person outside the Department caused or materially contributed to, other than 'any error of law which is shown to have been an error by virtue of a subsequent decision of a Commissioner or the court'.

The Secretary of State submits that in taking the March 2005 decision he either knew the relevant facts but failed to apply the law to them, in which case there was official error within regulation 3(5)(a), or did not know the relevant facts, in which case the decision was taken in ignorance of or based on a mistake as to the facts. He submits that official error can encompass failure to follow internal procedures or to obtain information which should have been obtained. He further submits that the March decision was erroneous and that 'it is to some extent beside the point' how the error came about, though the most likely explanation was the failure of internal procedures. He attaches some computer screen prints and paper records which, he submits, indicate that the claimant's Norwegian nationality was known about but no consideration given to the question of her right to reside. He also attaches a copy of CH/602/04, but the submission does not comment upon it.

In reply the claimant submits that the records produced by the Secretary of State suggest that some consideration was given to the 'right to reside' issue, since there are two references to the need to 'check immigration status', though on one document the line 'HRT' (presumably standing for 'habitual residence test') is left blank. She submits that, given the prevalence at the time of the decision of claims by EEA nationals, the right to reside test was having to be considered in a relatively large proportion of cases and that it was unlikely that it was not considered in hers. Though the March decision ran against the trend of the Secretary of State's decisions in these cases, that was not exceptional and it was perfectly possible that different decision-makers on behalf of the Secretary of State might take different views on a complex and controversial area of law. The lack of a record of a right to reside decision did not mean that none was taken, particularly given the general absence of records in this case. A right to reside decision in the claimant's favour would not, she submits, be an official error as it would be an error of law shown up by the subsequent decision in CIS/3575/2005.

The concept of an error internal to the decision-making body is used in various places in the benefits legislation. Usually it is in the claimant's interest to show that such an error has been made. For example, overpayments of HB and CTB are recoverable provided they were not made as a result of an official error (though they may be recoverable even if they were). An historical example of the concept being employed in a claimant's favour is regulation 72 of the Social Security (Adjudication) Regulations 1986, which is the subject of the two supplementary benefit decisions that are referred to in the commentary on the definition of official error in regulation 1 of the Decisions and Appeals Regulations in Rowland and White on Social Security Administration, etc and by the tribunal in its statement of reasons.

Regulation 72 of those earlier Regulations, entitled "Exemption from limitation on payment of arrears of benefit" provided (so far as material to those decisions) that

… nothing in this section [of the Regulations] shall operate so as to limit the amount of benefit or additional benefit that may be awarded on a review of a decision if the adjudicating authority making the review is satisfied … that the decision under review was erroneous by reason only of a mistake made, or of something done or omitted to be done by an officer of the Department … or by an adjudicating authority … and that the claimant and anyone acting for him neither caused nor materially contributed to that mistake, act or omission ….

In R(SB) 10/91 the claimant contended that an earlier failure of the adjudication officer to consider whether to exempt him from the requirement to be available for work under the supplementary benefit legislation was an error of the sort described by regulation 72, with the result that (now that it had been established that he should be exempted) the award of SB should be backdated. It was against that background that, after holding that the onus of seeking exemption had always been on the claimant, Mr Commissioner Goodman held that the concept of mistake in the regulation 'refers only to clear mistakes of fact or law in relation to an actual issue in a given case at a time when the officer was actively required … to arrive at a decision or take some administrative act' and did not 'impose a general duty on the officers … constantly to keep all cases under review in order to see whether or not any particular exempting regulation might apply'.

In R(SB) 2/93 the tribunal had decided that the claimant qualified, on health grounds, for a higher rate of SB than he had been receiving, and had done so since 1979. This had only been recognised in 1984 and the award had not been backdated under regulation 72. Mr Commissioner Skinner upheld the tribunal's decision that the claimant had failed to show that regulation 72 applied (the claimant having argued that officers prior to 1984 had made insufficient enquiries into his state of health) and alternatively that the claimant caused or materially contribute to the failure by saying that he hoped to obtain work and thus implying that he was fit for it. The commissioner repeated that the 'mistake envisaged by the regulation is a clear and obvious mistake made by the officer … on the facts disclosed to him or which he had reason to believe were relevant'.

The commentary describes the effect of these decisions as being that 'only clear and obvious mistakes amount to errors in this context and a failure to elucidate facts not disclosed by the claimant is unlikely to suffice'.

From these and other authorities on the concept of official error (thoroughly reviewed by Mr Deputy Commissioner Whybrow QC in CH/687/2006) it seems to me that the concept of 'official error' requires more than that an earlier decision can be seen to be objectively wrong by reference to what is now known about the facts of the case. Something must be shown to have gone wrong in the way the decision was arrived at. Nevertheless, the broad formulation of regulation 3(5)(a) - that the decision 'arose from' an official error - does not suggest a particularly narrow approach to what constitutes official error. It might be an error of fact (provided it was not caused or contributed to by, in particular, the claimant), an error of law (apart from, in the case of the Decisions and Appeals Regulations, one shown up by a subsequent judicial decision) or a procedural error (subject to the proviso that the official is not to be convicted of an error on the ground that he failed to ask a question which did not suggest itself). Failure of the DWP to send notice of a change in a claimant's income support situation is an example of official error (R (Sier) v Cambridge CC [2001] EWCA Civ 1523).

I think it likely that the concept of official error only embraces errors that themselves caused the decision in question to be wrong. The failure to refer the present case to a specialist decision-maker did not cause the decision to be wrong, since the local decision-maker would not inevitably reach the wrong decision. But I prefer not to express a concluded view on that question.

The principle underlying the old regulation 72 and regulation 99 (now 100) of the HB Regulations seems to me to be that it is unfair that a claimant should lose out – whether by not having an underpayment of benefit made good or by having an overpayment retrospectively recovered - in circumstances where the problem arises entirely from something having gone wrong within the decision-making process. The unusual feature of regulation 3(5)(a) of the Decisions and Appeals Regulations is that a finding of official error may lead to revision to the claimant's detriment as well as in his/her favour. In the case of a revision adverse to the claimant, it is somewhat anomalous that the claimant should only be exposed to the risk of a revision adverse to him/her under this provision provided he or she did not contribute to the error, but I do not find myself able to impute to the draftsman an inadequately expressed intention to confine revision under regulation 3(5)(a) to revisions favourable to a claimant. There is no indication of that in the language of the regulation and the intention seems to me to have been to make internal official error – whether in the claimant's favour or not – one of a number of situations in which decisions could be revised.

In the present case the tribunal's decision on regulation 3(5)(a) was that "the officer failed to elucidate appropriate information on the claim and/or from the claimant. I find that this does not constitute an official error (see R(SB) 10/91 and R(SB) 2/93)". In my judgment this proposition was erroneous in law because it ascribed too broad an effect to the two SB decisions, which I have summarised above. They are not authority for the proposition that it is never an official error to fail to elicit facts, but rather for the more limited proposition that is not an official error to fail to keep cases constantly under review or to fail to raise matters that the onus is on the claimant to raise (R(SB) 10/91) or otherwise to fail to make enquiries into matters (like the claimant's state of health in R(SB) 2/93) that do not suggest themselves as being in issue. A failure to find or investigate facts in relation to an issue that the official is required to decide as part of the decision-making process is in my view an official error.

The tribunal's decision must therefore be set aside, although I agree with the tribunal that the Secretary of State has not made out the alternative case for review under regulation 3(5)(b) since it is impossible to identify any fact as to which he was ignorant or mistaken. I should add for completeness that I disagree with the tribunal's conclusion (in its consideration of possible grounds for supersession) that there was no error of law but merely the taking of a different view of the case by the June 2005 decision-maker. R(I) 3/75, to which the tribunal referred in that connection, is concerned with supersession for error of fact rather than law, and specifically with inferences of fact, holding that a later decision-maker cannot say that an earlier decision-maker made an mistake of fact simply because he now prefers to draw a different factual inference.

I can give the decision that the tribunal ought to have given, since the relevant factual material is in writing and in the file. It is clear that the March 2005 decision-maker was aware of the claimant's Norwegian nationality (see page 90) and alive to the need (as it was put) to 'check [her] immigration status' (pages 87 and 88). The only other things that are known are that the decision on benefit was taken locally and not referred to the specialist decision-makers and that the decision was to award benefit.

The possibilities are either (1) that the need to ascertain whether the claimant was disentitled as a person from abroad was subsequently overlooked and the award made regardless of it or (2) that - as the claimant's representative suggests could have happened - the local decision-maker reached a considered decision that the claimant either did have a right to reside or was entitled to income support without a right to reside by virtue of EU and EEA law. If it was the former, then the decision-maker failed to answer a question that the law required him/her to answer, which in my judgment amounts to an official error; if it was the latter then, on the uncontroversial facts that the claimant was an economically inactive, non self-supporting EEA national, the decision-maker's decision must have involved an error of law. It is true that the error of law is shown to be such by Abdirahman and the commissioners' decisions considered in it, but that does not on the facts of this case prevent it being an official error.

That is because the decision to revise was taken in June 2005 whereas CIS/3573/2005 was not decided until 2006. The June 2005 decision-maker must have decided, independently of the later decision of the commissioners, that the March decision was wrong in law. The purpose of the clause in regulation 1 of the Decisions and Appeals Regulations excluding errors shown up by subsequent judicial decisions is to prevent review of decisions in favour of claimants (or, just conceivably, in favour of the Secretary of State where a later judicial decision is more favourable to him than his previous view of the law) in consequence of the later judicial decision. I do not consider that the clause can sensibly be construed as retrospectively depriving the Secretary of State of the ability to correct an error which he has himself detected because the view of the law which he had taken in his revising decision is subsequently confirmed by the commissioner or the court.

(2) Effect of regulation 7A(5)(d) of the HB Regulations 1987 and regulation 4A(5)(d) of the CTB Regulations 1992

The local authority's written submission to the commissioner in the HB/CTB appeal repeats its argument (referred to above) based on the words 'in receipt of'. A further submission refers to the decision of Mr Commissioner Powell in CH/820/2006 and acknowledges that it supports construing 'in receipt of' as meaning 'entitled to'.

In the Secretary of State's written submission his representative submits that the tribunal's HB decision was wrong because the award of income support only meant that the claimant's income and capital were to be disregarded; if the claimant did not have the right to reside in the United Kingdom, then she was not entitled to HB and CTB notwithstanding that she was entitled to income support. He relies on paragraphs 36-40 of R(H) 9/04. He adds that the tribunal did not decide in the income support appeal that the claimant was habitually resident with a right to reside (a conclusion that would have applied to the HB and CTB appeal as well) but merely that there were no grounds for revision or supersession of the decision awarding income support. The issue of the claimant's right to reside was 'raised by' the HB/CTB appeal, and the tribunal should have considered it: CIS/624/06 paragraphs 47-49 and 55.

The claimant's representative submits, in response to the Secretary of State, that paragraphs 36-40 of R(H) 9/04 are obiter and wrong. The clear effect of regulation 7A(5)(d) of the HB Regulations 1987 is that once income support has been awarded a local authority is bound to find that the claimant is not a person from abroad. In response to the local authority the claimant submits that the words 'in receipt of' in the regulation should be construed as meaning 'entitled to'. It would be pointless if the tribunal were required to dismiss the HB/CTB appeal because the Secretary of State had not yet paid income support in compliance with the tribunal's income support decision and for the tribunal's HB and CTB decision to have to be superseded for change of circumstances once the income support was actually paid.

As already mentioned, the tribunal's decision in the HB/CTB appeal was based upon its decision that the March award of income support was still in place. That was an error of law because the tribunal's income support decision was itself erroneous in law. I must therefore set that decision aside.

I do not set the decision aside on the basis of either the local authority's submission that the claimant was, despite the tribunal's favourable decision on income support, nevertheless not 'in receipt of' it at the time the tribunal gave the HB decision, nor on the basis of the Secretary of State's submission that the tribunal's decision was contrary to R(H) 9/04.

The local authority's submission cannot be right, whatever meaning is given to the words 'in receipt of income support' in each regulation. That is because the tribunal was precluded by section 12(8)(b) of the Social Security Act 1998 from taking into account any circumstances not obtaining at the time the decision appealed against was made. That would on any view have precluded the tribunal basing its decision on whether the claimant was 'in receipt of income support' as at the date of its November 2006 decision.

As noted above, the Secretary of State has relied on R(H) 9/04 as showing that receipt of income support could not be relevant to whether the claimant was a person from abroad for the purposes of HB or CTB. The claimant has retorted that my remarks in paragraphs 36-40 of R(H) 9/04 are obiter and wrong.

In R(H) 9/04, which concerned regulation 7(1)(c) of the Housing Benefit (General) Regulations 1987 (now regulation 9(1)(c) of the Housing Benefit Regulations 2006), the issue was whether a DWP determination that two people had been a couple at a relevant point in time was binding upon an HB decision-maker. The local authority argued that the decision in R v Penwith DC ex p Menear (1992) 24 HLR 115 established a general rule that HB decision-makers were bound by a decision of a DWP decision-maker on an issue relevant to both social security and HB entitlements. I rejected that submission. The local authority's counsel had relied on a passage in the commentary to regulation 7A in CPAG's Housing Benefit and Council Tax Benefit Legislation 2003/2004. That passage cited ex p Menear, rather than regulation 7A(5), in support of the proposition that if the claimant is receiving income support or income-based JSA then the local authority 'is not entitled to refuse benefit on the ground that s/he is a person from abroad, just as it may not apply the means tests'.

I said that I did not consider that ex p Menear was authority for that proposition, a view with which the authors of the commentary in subsequent editions appear to agree. As the authors rightly point out, however, I overlooked regulation 7A(5)(d). I agree with everything in the commentary on paragraphs 5(d) and (e) of regulation 7A (now regulation 10(3B)(k) of the 2006 Regulations) in the subsequent editions of the work, including the criticisms of what I said about the position of a person who is in receipt of income support (or, by the same token, income-based JSA). Specifically I agree that, contrary to what I suggested in paragraph 39 of my decision, a local authority cannot hold a person to be a person from abroad if the they are 'in receipt of' IS or 'on' income-based JSA. I go on to consider what those expressions mean.

The language of the Regulations varies. Both in regulation 7A(5)(d) and (e) of the HB Regulations 1987, as amended, and in regulation 10(3B)(k) of the 2006 Regulations, the different expressions 'in receipt of' income support and 'on' income based JSA are used. The provisions on disregarding capital and income in schedules 3, 4 and 5 to the 1987 Regulations (now schedules 4, 5 and 6 to the 2006 Regulations) refer to a person 'on' income support or 'on' income-based JSA, but regulation 2(1) of both Regulations contains a definition of a 'person on income support' as a 'person in receipt of income support', while regulation 2(3A) of the 1987 Regulations (now regulation 2(3) of the 2006 Regulations) provides that a person is 'on' income-based JSA on any day on which it is payable to him and on certain other days on which he satisfies the conditions of entitlement but the allowance is not payable for various reasons.

The rationale of these various provisions seems to me to be based on the fact that people with earnings or capital below the income support threshold will be financially entitled to HB or CTB and that the test for a person from abroad is similar in both sets of Regulations; it is pointless for HB and CTB decision-makers to repeat the exercise of assessing earnings and capital or determining whether the claimant is a person from abroad if a DWP decision-maker has already decided those issues in the claimant's favour.

As the claimant's representative has pointed out, in the case of some benefits a claimant may meet the underlying conditions of entitlement and yet not be entitled to have the benefit paid to him/her (he instances Carer's Allowance). It seems to me that the somewhat elaborate provision made for when a claimant is to regarded as 'on' JSA is likewise designed to cover cases where, despite JSA not being in payment, the claimant has been found to meet those conditions of entitlement that are common to JSA and HB or CTB.

In the case of income support it was not necessary to distinguish between entitlement and payability; accordingly, the draftsman used the simpler expression 'in receipt of income support'. The issue is whether he meant literally 'in receipt' of payment by way of income support, whether or not entitled, or whether he envisaged a claimant who was entitled to income support. No doubt he had in mind an HB or CTB claimant producing evidence of an award of income support. But I cannot conceive that he intended that an entitlement to HB or CTB would survive even if it subsequently turned out that the claimant was not entitled to the income support he had been receiving, nor that a claimant who continued to satisfy the conditions of entitlement to income support should lose his 'passported' entitlement to HB or CTB merely because the income support to which he remained entitled was for some reason not reaching him.

CH/1820/2006 concerned a claimant who had secured income support by misrepresenting his means and then secured HB by virtue of his receipt of income support; the issue was whether he remained entitled to the HB for the period in which he had been (literally) in receipt of the income support even though the DWP was entitled to recover the income support. Mr Commissioner Powell held that 'When the Department for Work and Pensions decided that the claimant was not entitled to income support from August 1996, he was no longer "in receipt of income support" from that time. He had been paid it and was required to repay what he had received. He could no longer be categorised as in receipt of income support from that time'.

In the present case there is no question of recovery of the sums paid to the claimant by way of income support. But I do not consider that a claimant can continue to be described as 'in receipt of income support' in the sense intended by the draftsman – namely of being regarded by the DWP as entitled to income support and therefore deserving of HB or CTB without further investigation of their means or possible status as a person from abroad – in respect of period in relation to which it has later been established that they were not entitled to income support.

Since it is uncontroversial that the claimant was a 'person from abroad' within the meaning of the HB and CTB Regulations as well as the Income Support (General) Regulations 1987 and in the light of my conclusion that she was not 'in receipt of income support' on a true construction of the HB and CTB Regulations, I give the decision that the tribunal ought to have given, which is that the claimant was not entitled to HB or CTB from 1 November 2004.

(3) Recoverability of HB or CTB

The local authority has issued a recovery decision, though it has not as far as I know been able to recover benefit out of any subsequent entitlement nor invoiced the claimant. The claimant has not expressly appealed the recovery decision and no attention has been paid to it in the submissions, which have focussed on the logically prior question of whether there had been an overpayment of HB or CTB. However, had the tribunal given the decision that I consider it ought to have given on the issue of HB and CTB entitlement, it ought in my judgment to have considered whether to treat the appeal as extending to the recovery decision in the interest of finally concluding any issues arising out of the three appeals.

It seems to me that issues of recoverability arise which I cannot fairly resolve without any submissions from the parties. The awards of HB and CTB seem to me to have resulted, to some extent at least, from the DWP's official error in awarding income support. They are therefore not recoverable to the extent that the claimant can show that she or a person acting on her behalf could not, at the time of receipt of any payment or of any notice relating to it, reasonably have been expected to realise that it was an overpayment (HB Regulations 1987 regulation 99, HB Regulations 2006 regulation 100 and the corresponding provisions of the CTB Regulations).

It seems to me to be at least possible that the claimant could make out that defence in respect of payments made or notified to her prior to her learning of the June 2005 income support decision. Thereafter, the issues become more complicated.

The local authority seems to suggest that payments after that date were not the result of the DWP's official error but of the claimant failing to notify it of the withdrawal of income support. On the other hand, the claimant's first income support appeal succeeded in August 2005, two months after the withdrawal. It seems to me to be arguable that she and anyone acting on her behalf (assuming they were aware of the link between income support and HB/CTB) could not have been expected to consider her ineligible for HB or CTB after she won the first appeal. Other issues may arise.

It would not be right for me to seek to decide points on which I have no submissions, nor is it expedient for me to speculate as to the facts. I do not therefore offer any concluded view on the points that I have touched on (which I mention purely to illustrate that there is scope for further argument). Nor do I consider it appropriate for me to invite further submissions or hold an oral hearing for the purpose of taking any required evidence, given that the case originates in Leicester and any issues of recoverability can more economically be dealt with locally than by either requiring the parties and their representatives to travel to London or by my travelling to Leicester myself.

The issue of recoverability is therefore remitted to the tribunal. I suggest that the tribunal may find it desirable, in view of the passage of time since the benefit was paid, to direct the local authority to inform the tribunal and the claimant's representative whether it proposes to pursue the issue of recovery and, if so, to direct submissions from both parties.

(signed on the original) Nicholas Paines QC

Deputy Commissioner

25 February 2008

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