Upper Tribunal (Administrative Appeals Chamber)

 

                                        DECISION OF THE UPPER TRIBUNAL

                                      ADMINISTRATIVE APPEALS CHAMBER

 

Walsall Borough Council's appeal to the Upper Tribunal is allowed. The decision of the Wolverhampton appeal tribunal dated 12 October 2006 involved an error on a point of law and is set aside. It is appropriate for the Upper Tribunal to re-make the decision on the Globe Property Ltd's (the landlord's agent's) appeal against the local authority's decisions of 19 July 2005 and 22 September 2005 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii) and (4)(a)). The decision as re-made is that that appeal is allowed in a technical sense and that the overpayment of housing benefit amounting to £3,664.71 incurred in the period from 2 August 2004 to 10 July 2005 is recoverable under section 75(3) of the Social Security Administration Act 1992 from the claimant, from the landlord and from Globe Property Ltd as the landlord's agent. It is a matter for Walsall Borough Council to determine against which of those persons to seek to enforce recovery.

 

 

                                                   REASONS FOR DECISION

 

1.         With effect from 3 November 2008, appeals that were pending before a Social Security Commissioner are to be dealt with by the Administrative Appeals Chamber of the new Upper Tribunal.

 

2.         I apologise for the exceptionally long delays in this case after I granted Walsall Borough Council ("the local authority") what was then still leave to appeal on 12 March 2007, mainly taken up by the Commissioners' (now the Upper Tribunal) office trying unsuccessfully to get responses from the landlord and the claimant, whom I had made parties to the appeal. They have taken no part in these proceedings, but have been sent all documents and notices. Finally, after the Secretary of State for Work and Pensions had been made a party, because of the general importance of the issues raised in this case, and made a written submission, I directed that there was to be an oral hearing.

 

3.         The hearing took place on 2 November 2009. The local authority was represented by Mr Gurdeep Johal. The Secretary of State was represented by Ms Anna Powick of DWP Legal Services. No other party attended or was represented. I am grateful to both representatives for their submissions, which were very much in agreement, and to Mr Johal in particular for producing further relevant documents.

 

The main issue of law, with a health warning

4.         The central issue of law is whether, in the light of Commissioner's decision R(H) 10/07, when an overpayment of housing benefit is being made recoverable from the landlord's agent as the person to whom benefit had been paid, under section 75(3)(a) of the Social Security Administration Act 1992, it can and must also be made recoverable from the landlord, as well as the claimant, unless the landlord personally can show an exception from liability.

 

5.         The health warning is this. The local authority's decisions under appeal to the appeal tribunal were made in July and September 2005, while what was then regulation 101(2) of the Housing Benefit (General) Regulations 1987 (the 1987 Regulations) was in a different form from that of regulation 101(2) of the Housing Benefit Regulations 2006 (the 2006 Regulations) as amended with effect from 10 April 2006. Under the current form of regulation 101(2), if a claimant (among others) has misrepresented or failed to disclose a material fact, in consequence of which an overpayment arose, the overpayment is recoverable from the claimant under section 75(3)(b) of the Social Security Administration Act 1992 instead of from the person to whom the benefit was paid. Under the form of regulation 101(2) in force in July and September 2005, there could be recoverability from the claimant as well as from the person to whom benefit was paid. In the present case, the claimant ceased to be entitled to jobseeker's allowance (JSA) and did not inform the local authority. Nor did he inform the local authority when he vacated the property several months later. If the superseding decision had been given after 9 April 2006 (see AH v Mendip District Council and the Secretary of State for Work and Pensions [2008] UKUT 18 (AAC), reported as R(H) 3/09), the result would seem to have been that the resulting overpayment could only have been made recoverable from the claimant, so that the debate over who counted as the person to whom benefit was paid - the landlord's agent, the landlord or both - would be irrelevant. But as the legislation stood in July and September 2005 the outcome of the debate is important, as it will continue to be in cases in which regulation 101(2)(a) of the 2006 Regulations does not apply.

 

The factual background

6.         Prior to February 2005 the claimant was entitled to housing benefit in relation to 45 C Close under an award made by the local authority on the basis of the claimant's entitlement to income-based JSA. Payment was made direct to Globe Property Ltd as the landlord's (a Mrs B's) agent. Mr Johal was able to produce at the oral hearing the original claim form signed by the claimant on 1 May 2004 on which he ticked the box for payment by crossed cheque to be made to his landlord's agent, having previously named Globe Property as both his landlord and the landlord's agent. There were also boxes for the landlord or a housing association or the claimant himself. Mr Johal further produced a letter dated 19 May 2004 from Globe Property Ltd to the local authority stating the amount of the rent and the name of the landlord and asking for payment to be sent direct to them. Apparently enclosed with that was an undated letter signed by the claimant authorising the payment of housing benefit to be paid directly to Globe Property. It has been assumed that the local authority was acting on the claimant's request under what was then regulation 94 of the 1987 Regulations (regulation 96 of the 2006 Regulations). I shall have to come back to whether that was right or whether what was then regulation 92(3) (regulation 94(3) of the 2006 Regulations) was relevant. On 21 February 2005 the local authority received a review form for the same address signed by the claimant on 15 February 2005, indicating continued receipt of JSA. The accompanying tenant consent form named the Globe Property in the box for identifying the landlord. Those documents were before the appeal tribunal.

 

7.         The local authority received information on 27 April 2005 from interrogation of the "RAT" computer system that the claimant's entitlement to income-based JSA had ceased after 27 July 2004. Globe Property Ltd wrote to the local authority as follows in a letter dated 7 June 2005:

 

"I am writing to inform you that as per my telephone call earlier today the above-named Globe Property tenant has vacated the property with effect from 27th May 2005.

We are currently reconciling the tenant's rent account and need you to confirm to us the amount of housing benefit payable up to and including 27th May 2005.

This is very urgent please as until we are aware of the closing benefit amount we are unable to close down the files and refund the tenant's deposit. We have checked the last housing benefit schedule and we were paid until 15th May 2005, we therefore believe there are 12 days benefit outstanding."

 

8.         There is then a record of a decision made on 19 July 2005 in these terms:

 

"Claim canc as vacated 27/5/05. End date 29/5/05. Passed back to VF team to action Review form as Ben 05 states JSA ceased 27/7/2004."

 

The reference to Ben 05 must I think have been to the report of the earlier RAT search, although the papers also contain a report of another search getting the same result on 25 July 2005.

 

9.         A benefit decision notice dated 22 September 2005 was sent to Globe Property Ltd setting out a calculation of an overpayment of housing benefit amounting to £3,215.97 for the period from 2 August 2004 to 29 May 2005, by reference to an old entitlement of £74.79 per week and a new entitlement of nil. The reason for the calculation was stated to be "Cancellation" and it was also stated that the overpayment would be recovered (the printing here is garbled). An overpayment statement showed the current overpayment outstanding as £3,215.97 and stated "You are expected to pay this amount outstanding". Mr Johal produced a copy letter of the same date notifying the claimant that he had been overpaid that amount and saying that it would be recovered in due course.

 

10.       On 13 December 2005 the local authority sent Globe Property Ltd an invoice for £3,664.71 for an overpayment for the period from 2 August 2004 to 10 July 2005, referring to a letter informing them that they had been overpaid housing benefit. Mr Johal explained the difference in the period and the amount as resulting from the combination of the overpayment for the period from 30 May 2005 to 10 July 2005, stemming from the entitlement decision made on 19 July 2005 after the local authority had been informed that the claimant had vacated the premises, with the overpayment for the period from 2 August 2004 to 29 May 2005, stemming from the entitlement decision made on 22 September 2005 after the local authority learned that the claimant had ceased to be entitled to JSA after 27 July 2004. He produced computer records of the sending of notification letters that he said confirmed that pattern of decisions. Unfortunately, the copies that were made on the day of the oral hearing and retained in the file do not do that, but I am prepared to accept for the purposes of this case that there was some slip in copying the records either by Mr Johal or by the Upper Tribunal clerk and that there was a proper sequence of entitlement decisions and then overpayment decisions notified both to the claimant and to Globe Property Ltd on 19 July 2005 and 22 September 2005.

 

11.       On 2 March 2006 Globe Property Ltd wrote purporting to appeal against the invoice, saying that before a tenant vacated a property they contacted the local authority to request if there was an overpayment before returning the tenant's deposit and making a final payment to the landlord and that no overpayment was mentioned at the time. It was suggested that the overpayment needed to be recovered from the claimant and a forwarding address was given. That was admitted by a clerk to the appeal tribunal as a late appeal against the decision of 22 September 2005. That should be regarded as also covering an appeal against the decision of 19 July 2005.

 

12.       In a letter dated 31 August 2006 to Globe Property Ltd saying that the decision had not been altered on reconsideration, the local authority stated:

 

"The overpayment occurred as a result of [the claimant's] failure to inform the authority of a change in his circumstances, when he ceased to be entitled to Job Seeker's Allowance from 28 July 2004; this information was received from the Department of Works and Pensions' computer records on 27 April 2005. Subsequently, the claim was terminated on 19 July 2005, however, payment of Housing Benefit had been sent to you from 2 August 2004 [to] 10 July 2005. The authority determined that you had received overpaid benefit for this period to which [the claimant] was not entitled."

 

The letter also stated that the authority considered that the overpayment had not resulted from official error, but was due to the claimant's error.

 

13.       The local authority's written submission to the appeal tribunal contained little additional information or explanation, for instance of how it came to continue to make payments of housing benefit after 27 April 2005, when it received the information about the claimant's entitlement to JSA having ceased. It was noted that Globe Property Ltd had initially been informed of an overpayment of £3,215.97 on 22 September 2005 and that it was unclear whether notice of the additional overpayment of £448.74 for the period from 30 May 2005 to 10 July 2005 was sent at the same time. But there was no explanation of the course of decisions reaching that outcome. It was submitted that an overpayment could be recovered from the recipient although that person had not contributed to or had any knowledge of the overpayment. Finally, it was stated that the authority had been unable to establish whether or not the claimant had any underlying entitlement to housing benefit for the period of overpayment, but there was no explanation of what steps, if any, had been taken to obtain the information necessary to making such an assessment.

 

The appeal tribunal's decision

14.       So far as one can tell, no notice of the appeal tribunal's hearing was sent to the claimant or to the landlord personally. No-one attended to represent either Globe Property Ltd or the local authority. The appeal tribunal allowed the appeal and gave this decision:

 

"The overpayment was received by the appellant company in its capacity as agent for the landlord, not as a principal. For this reason it is not `the person to whom it was paid' within the meaning of s.75 of the Social Security Administration Act 1992."

 

15.       That was spelled out in more detail in the statement of reasons, after findings that Globe Property Ltd's role as an agent was known to the local authority and that no injustice would be done by proceeding in the absence of the parties:

 

"It is a fundamental principle of the law of agency that the acts of an [agent] within the scope of his agency are in law the acts of his principal. In our judgement the receipt of Housing Benefit by the appellants as letting agents was clearly within the scope of agency. As a matter of law therefore the act of receiving that benefit was the act not of the appellants but of their principal, the landlord. In my judgement the appellants are not caught by the provision in section 75(3)(a) of the Social Security Administration Act 1992, which refers to `the person to whom it [namely the excess Housing Benefit] was paid'. ... The position in my judgement is exactly analogous to that of their bank, who will have been the first body to receive the relevant payments. The bank received those payments as agent for the appellants, and in turn the appellants acted as agent for the landlord. In my view it is improbable in the extreme that the legislative intention behind section 75 was to create a potential liability on banks in these circumstances to repay overpayments."

 

The appeal to the Upper Tribunal

16.       The local authority now appeals against that decision with my leave. No-one has disagreed with the suggestion made then that the decision could not stand with the decision of Mrs Commissioner Jupp that has now been reported as R(H) 10/07, rejecting exactly the same reasoning as adopted by the appeal tribunal here. Neither Mr Johal nor Ms Powick wished to submit that R(H) 10/07 was wrong in any way.

 

17.       I too agree with the outcome of R(H) 10/07, that under the legislation in effect prior to 10 April 2006, if a local authority makes payments of housing benefit to a landlord's agent that turn out to have been overpaid, the overpayment is recoverable from the agent under section 75(3)(a) of the Social Security (Administration) Act 1992. Until shortly before the oral hearing in the present case, I also accepted all of the reasoning in R(H) 10/07. However, the sharp focus of the present case has exposed a number of difficulties. It is most unsatisfactory that the legislation relevant to whether or not a person is liable in law to have overpayments of housing benefit recovered from him should be less than clear.

 

18.       Mrs Commissioner Jupp relied in paragraph 20 of R(H) 10/07 on the extension to the meaning of "landlord" in regulation 93(1) of the 1987 Regulations about when a local authority is required to make payment to a landlord (regulation 95(1) of the 2006 Regulations). That meaning was expressly adopted in regulation 94 (regulation 96 of the 2006 Regulations) about when a local authority had power to make payment to a landlord, and also in regulation 101 about the persons from whom an overpayment is recoverable. The extension is that "`landlord' includes a person to whom rent is payable by the person entitled to that [rent] allowance". She saw that as "including an agent within the definition of landlord, effectively without distinction", thus authorising the payment of housing benefit direct to a landlord's agent, under the conditions of regulations 93 and 94, and in turn the recoverability of an overpayment from the agent under section 75(3)(a) as the person to whom benefit was paid. That view was supported at the oral hearing by Mr Johal and Ms Powick when asked to identify the legislative provisions authorising payment to a landlord's agent, although they accepted that the method adopted in the legislation was not straightforward. They submitted that the extension to an agent of a landlord was permitted under the very general terms of section 5(1)(p) of the Social Security Administration Act 1992, which allows regulations to provide for the circumstances and manner in which payments of benefits including housing benefit "may be made to another person on behalf of the beneficiary for any purpose, which may be to discharge, in whole or in part, an obligation of the beneficiary or any other person". They also pointed out that direct payment to agents of landlords was a long-standing and valuable part of the practical administration of the housing benefit scheme which should not be invalidated at this late stage.

 

19.       After a good deal of hesitation, I agree. However, it is helpful in working out the consequences for the recoverability of overpayments to unpack the reasoning to some extent. In my judgment, the most natural primary reading of the extension to the definition of "landlord" is that it is there to take account of the variety of payments specified in regulation 10(1) of the 1987 Regulations (regulation 12(1) of the 2006 Regulations) in respect of which housing benefit can be payable and which are then within the meaning of "rent" in regulation 2(1). In the ordinary use of language, those entitled to some of those sorts of payments would not be termed landlords (eg mooring charges or payments under rental purchase agreements or even payments in respect of licences or permissions to occupy). The extension to the definition in regulation 93(1) (95(1)) ensures that payment of housing benefit must or can be made to those entitled to such payments under the same conditions as applicable to landlords in the ordinary sense.

 

20.       But can the extension have the further effect of directly authorising payment to an agent? For some time I thought that it could not, because rent could only be "payable", in the sense of the person being legally entitled to receive payment of rent, to the landlord. That view could be regarded as reinforced by the provision in regulation 93(2) (95(2)), whether or not it is ultra vires as argued by the editors of CPAG's Housing Benefit and Council Tax Benefit Legislation, that payments pursuant to regulations 93 and 94 (95 and 96) are to discharge, in whole or part, the claimant's liability to pay rent to the landlord concerned. However, it appears to be a long-standing element of landlord and tenant law, as it is put in paragraph 262 of Volume 27(1) of Halsbury's Laws of England (fourth edition, 2006 reissue), citing 19th century cases, that the "rent is payable either to the landlord, or to his agent expressly or impliedly authorised to receive it". Therefore, although the method adopted is rather indirect, I conclude that the meaning of landlord in regulations 93 and 94 extends to an agent of a landlord expressly or impliedly authorised to receive rent from the tenant in question. That conclusion has the additional merit of including landlords' agents within the scope of the exception from recoverability in regulation 101(1).

 

21.       I note the existence of regulation 92(3) of the 1987 Regulations (regulation 94(3) of the 2006 Regulations):

 

"(3) A person entitled to a rent allowance, although able to act on his own behalf, may request in writing that the appropriate authority make payments to a person, who if a natural person must be aged 18 or more, nominated by him, and the authority may make payments to that person."

 

It is now known, although this evidence was not put before the appeal tribunal, that the claimant here specifically nominated Globe Property on the initial claim form as the person to whom he wanted payment of benefit to be made as the landlord's agent. That would on the face of it fall within regulation 92(3) (94(3)). But it seems to me that where a case falls within the specific provisions of regulations 93 and 94 (95 and 96) applying to landlords (and extending to agents authorised to receive rent), regulation 92(3) (94(3)) must give way to those specific rules and protections.

 

22.       The important consequence for the provisions on recoverability of overpayments of housing benefit lies in my judgment in the limitations on what is authorised by regulations 93 and 94 (95 and 96). Those provisions allow the local authority, as it were, to make the cheque out to the landlord's authorised agent. But that is to allow one way of making payment to the landlord. The receipt of the housing benefit will then, just like a payment of rent to such an agent under general principles of the law of landlord and tenant and of agency, go to discharge the claimant's liability to the landlord to the extent of the payment, regardless of any deduction made by the agent for commission before paying over money to the landlord. In general, payment to an agent is payment to the principal. Subject to two specific points dealt with in paragraphs 24 to 27 below, I would say that in those circumstances the housing benefit has been paid not only to the agent, as decided by R(H) 10/07, but also to the landlord.

 

23.       Ms Powick for the Secretary of State correctly pointed out that section 75(3)(a) of the Social Security Administration Act 1992 only entitles a local authority to recover an amount of housing benefit paid in excess of entitlement as eventually determined. It does not entitle the authority to recover from third parties to whom the payee of the benefit is obliged to make some payment on receipt of the benefit. But that is not the situation when payment is made to a landlord's authorised agent. The agent will be under a contractual duty to pay over to the landlord all or some of the amount received, according to the terms of the contract. But where the local authority was only authorised to make payment in the way it did by virtue of the relationship of agency between the landlord and the agent, payment to the agent would also constitute payment of housing benefit as such to the landlord.

 

24.       It is, though, necessary to look at the precise words of section 75(3)(a) of the Social Security Administration Act 1992 and consider whether they displace that conclusion. The reference there is to "the person to whom" benefit was paid. It is not to a person. Does that require that only one person can be regarded as having had benefit paid to them for the purposes of section 75(3)(a) and recoverability? The local authority and the Secretary of State say yes and that the person in the present case had to be Globe Property Ltd as the landlord's agent. They maintained that position when asked what should happen if a landlord's agent became insolvent. Mr Johal submitted that the simplicity of having to make decisions only against the agent and not against both the agent and the landlord outweighed the disadvantage of not being able to seek recovery from the landlord if the money could not in practice be got out of the agent. I do not know if other local authorities would take the same view. It might also be argued that the result is not unfair to agents because if they wish to have the advantage of payments of housing benefit coming through them, so that they can take their commission or other amounts before transmitting the balance to the landlord, they must take the burden of liability to repay overpayments to the local authority even though that balance has been paid over to the landlord. They can take steps in the contracts they make with landlords to include an indemnity for any amounts required to be repaid by the local authority or may even have an implied right to such an indemnity.

 

25.       There is force in those submissions, but I do not find them persuasive. The context of section 75 as a whole does not take one much further forward. From the outset of the scheme it has been considered necessary for the regulations to prescribe the claimant under section 75(3)(b) as a person other than the person to whom the benefit was paid from whom an overpayment could be recoverable. Thus, when the current form of section 75(3) was inserted by section 71 of the Child Support, Pensions and Social Security Act 2000 (the 2000 Act), it can be inferred that the person to whom benefit was paid was not intended to extend to the claimant merely because housing benefit which was primarily required to be paid to him (see section 134(2) of the Social Security Administration Act 1992) was paid at his direction to the landlord in discharge of his liability for rent. But that does not affect the question of whether as between landlord and agent only the agent can be regarded as having received payment. The rule in section 6(c) of the Interpretation Act 1978 is that in any enactment, unless the contrary intention appears, words in the singular include the plural and words in the plural include the singular. In my judgment, the use of the word "the" and the context of the Social Security Administration Act 1992 is quite insufficient to displace the presumption that the plural was included in section 75(3)(a).

 

26.       I was not referred to any Parliamentary material. I have not looked at Hansard in relation to the Social Security Administration Act 1992 (or the Social Security Act 1986 which was part of the consolidation into that Act) or in relation to the 2000 Act, but I have looked at the Explanatory Notes to the Bill that became the 2000 Act, the Regulatory Impact Assessment and House of Commons Library Research Paper 99/108. The Regulatory Impact Assessment is of no help, but the Explanatory Notes on recovery of housing benefit refer, for instance, to the percentage of payments direct to a landlord or agent, to such landlords and agents being obliged to notify changes of circumstances and (para 835) to local authorities' "discretion to recover an overpayment from either the tenant or the landlord or agent (as the person to whom benefit was paid)". The new form of section 75(3)(a) was explained as allowing regulations to be made excepting the landlord or agent, as the person to whom benefit is paid, from liability to repay when they had reported suspected tenant fraud, so as to encourage such reporting. Those explanations were picked up in the Research Paper, which talks sometimes of "landlords and/or their agents who receive benefit direct". The use of words might be argued to show an intention to contrast the claimant on one hand with either the landlord or agent on the other hand. However, it seems to me equally consistent with a position that both the landlord and the agent could be regarded as persons to whom benefit had been paid. I am certain that none of the authors of the documents mentioned above had the problem before me at all in mind. The form of words used in giving brief explanations is far too slight an indication of Parliament's intention to affect my conclusion in the previous paragraph.

 

27.       Finally, was anything said in R(H) 10/07 about the problem before me? It is true that Mrs Commissioner Jupp substituted a decision that the overpayment there was recoverable from the landlord's agent notwithstanding that it may have accounted to its principal, the landlord, for such sum or part of it, without saying anything about recoverability from the landlord in addition. But no-one had raised that issue at all. In my judgment nothing in the Commissioner's explanation of her decision is inconsistent with both the landlord and the agent being persons to whom benefit was paid in respect of the same payment. I have already mentioned her comment (paragraph 21 of the decision) about the legislation treating the landlord and his agent interchangeably. Then in paragraph 22 she referred, most significantly, to "person" in section 75(3) of the Social Security Administration Act 1992 being wide enough to "encompass ... both a landlord and an agent". That seems to me marginally more consistent with my conclusion above. Certainly, there is nothing in the reasoning in R(H) 10/07 to point positively against that conclusion.

 

28.       Accordingly, I conclude in the present case that, in so far as the overpayment referred to in the invoice of 13 December is legally recoverable, it is recoverable from Globe Property Ltd and the landlord under section 75(3)(a), unless either of them escape liability under regulation 101(1), as well as from the claimant under section 75(3)(b) and regulation 101(2)(c) of the 1987 Regulations.

 

29.       On the question of the general recoverability of that overpayment, I have accepted on the basis of Mr Johal's evidence and submissions that the decisions on entitlement for the whole period in question had properly been superseded by decisions on 19 July 2005 and 22 September 2005 resulting in a decision that the claimant had no entitlement to housing benefit from 2 August 2004. When the claimant had not informed the local authority of a ceasing of entitlement to JSA or of vacating the premises I think that it is proper to proceed on the basis that the changed circumstances after 27 July 2004 would not have given rise to any entitlement to housing benefit.

 

30.       The overpayment down to 27 April 2005 was undoubtedly not due to official error, because the local authority had no information to cast doubt on the correctness of the then current award of housing benefit. That changed when the information from the RAT system became available. I am not going to lengthen this decision by dealing with Mr Johal's submission that the local authority was allowed some reasonable period to react to that information before a failure to supersede the awarding decision or to suspend payment of benefit became official error and that that period had not expired by 7 June 2005, when the local authority first learned from Globe Property Ltd that the claimant had vacated the premises on 27 May 2005. The validity of that approach to official error will in my view have to be argued out fully in some future case. For the present, I am satisfied that for the time that the claimant was still resident in the premises, and not being pursued for rent arrears by Globe Property Ltd, he must have realised that the continued payment of housing benefit was an overpayment. Accordingly, the case did not fall within regulation 99(2) of the 1987 Regulations on official error in relation not only to the claimant, but also to the landlord and to Globe Property Ltd (see Commissioner's decision CH/4918/2003). Therefore, there was no obstacle to the general recoverability of the overpayment for the period from 2 August 2004 to 29 May 2005.

 

31.       In relation to the overpayment for the period from 30 May 2005 to 10 July 2005, after the claimant had vacated the premises, a large part of the overpayment of housing benefit could be said to be due to official error in the local authority's failure to react the information given by Global Property Ltd on 7 June 2005. However, for all that time Global Property Ltd must, as Mr Johal submitted, have realised that the continued payment of housing benefit after the claimant had left was an overpayment. Accordingly, the case does not fall within regulation 99(2) in respect of that period either and the overpayment incurred in that period is also recoverable in general.

 

32.       Can either the landlord or Global Property Ltd escape liability under regulation 101(1) of the 1987 Regulations? All of sub-paragraphs (a) to (d) had to be satisfied for a landlord (including an agent) to escape liability. In the present case,

neither the landlord personally nor the agent had notified the local authority in writing that it had a suspicion that there had been an overpayment of housing benefit, as required by sub-paragraph (b). Globe Properties Ltd's letter of 7 June 2005, far from notifying a suspicion of any past overpayment, suggested that as their last (presumably four-weekly) payment was on 15 May 2005 some further days of entitlement would be due to them. For that reason alone, the escape route under regulation 101(1) was not available and I need not consider sub-paragraphs (c) and (d).

 

Conclusion

33.       Accordingly, I must, for the reasons given above, set aside the decision of the appeal tribunal of 12 October 2006. In view of the long lapse of time and the lack of dispute over the essential facts, it is clearly appropriate to substitute a decision on Globe Properties' appeal against the local authority's decisions. Since all those from whom the overpayment is recoverable have been joined as parties before the Upper Tribunal, there is no need to send the case back to the local authority to start again by making a decision against all who are liable, as in Tribunal of Commissioners' decision R(H) 6/06.

 

34.       Global Property Ltd's appeal succeeds only in the technical sense that, in accordance with R(H) 6/06, the local authority's recoverability decisions should have been made not only against the claimant and Globe Property Ltd, but also against the landlord, so cannot simply be confirmed. The decision on the appeal is that the overpayment identified is legally recoverable from all three of those parties. But it will be up to Walsall Borough Council to decide whether it wishes to continue to enforce recovery against Globe Property Ltd alone or whether also or alternatively to pursue one of the other parties. The formal decision to that effect is set out at the beginning of this document.

 

 

 

                                                                                                   (Signed on original):  J Mesher

                                                                                                      Judge of the Upper Tribunal    

 

                                                                                                    Date:         26 November 2009