Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                              Appeal No.  CH/225/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

The appeal is allowed in part.

The decision of the First-tier Tribunal (Social Entitlement Chamber) tribunal dated 2/10/08 involves an error on a point of law.  The tribunal’s decision is SET ASIDE and RE-MADE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

The decision:  The appellant is liable for an overpayment of Housing Benefit of £3572.26 HB and of excess Council Tax Benefit of £1095.48 for the period 16/9/02 to 15/1/07 inclusive.  The overpayment is recoverable under regulation 100 of the Housing Benefit Regulations 2006 and regulation 83 of the Council Tax Benefit Regulations 2006.  During this period, the appellant was claiming as a lone parent but was, in fact, living with her husband who was in remunerative work. 

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 Upper Tribunal.

2.  The appellant appeals the decision of the First-tier Tribunal (Social Entitlement Chamber) tribunal heard under ref. 242/08/01797 on 2/10/08 with my permission. 

3. The overpayments with which this appeal is concerned arose in the following circumstances:  The appellant claimed HB and CTB from the respondent Authority on 11/9/02 as a lone parent with two dependent children, and was awarded benefit on that basis from and including 16/9/02.  The Authority received notification from the DWP on 13/4/07 that the appellant’s Income Support claim was terminated from and including 16/1/07.  The Authority thereupon suspended HB and CTB,  The DWP then superseded the appellant’s award of Income Support and raised a very large overpayment on the basis that the appellant’s husband had been living with her and was in remunerative work, from 5/3/02 – 15/1/07.  The Authority undertook its own investigation and terminated the appellant’s benefits on the same basis but from the later date of 16/9/02, to 15/1/07.  The original HB overpayment and CTB excess payment decisions amounted to £58,797.14 and £5637.24 respectively.  The Authority followed the correct steps for terminating the appellant’s claims and raising the overpayments, but although they had a full account of the husband’s earnings during the relevant period, the Authority did not calculate any underlying entitlement to benefits that the couple might have had. 

4. The tribunal disbelieved the appellant’s evidence that her husband was not living with her and accepted evidence produced by the Authority which pointed (in my view, strongly) the opposite way.  It came to the conclusion that they were living together as a married couple, and the tribunal gave sound reasons for that conclusion.  It followed inexorably that the overpayment was recoverable from the appellant under regulation 100, since there was nothing to raise the possibility of an official error by the Authority in paying the benefits. 

5. In granting permission to appeal, I limited the grounds to an issue not raised by the appellant:  whether the tribunal had erred in law in failing to consider the applicability of regulation 104(1) of the Housing Benefit Regulations 2006 and its equivalent in Council Tax Benefit Regulations 2006.  This regulation requires the Authority to deduct any amount of HB (or CTB) which should have been determined to be payable in respect of the whole or part of the overpayment period …’(b) on the basis of the claim as it would have appeared had any misrepresentation or failure to disclose been remedied before the decision’ and (c) on the basis of the claim as it would have appeared if any change of circumstances …had been notified at the time that change occurred.’  In this case, husband’s wages had been fully disclosed  before the decision maker had made the decision, and should undoubtedly have been put into the equation.  Moreover, a further child had been born to the couple during the relevant period.  

6. At my direction, the Authority calculated underlying entitlement, which resulted in a reduction of the overpayments to £3662.02 (HB) and £1123.37 (CTB).  I directed the Authority to carry out a further recalculation when the representative noticed that the Authority had not taken account of the further child born to the couple in 2005.  This resulted in final figures of £3572.26 (HB) and £1095.48 (CTB).  The representative accepts that the figures are now correct, but her client still denies that she was living with her husband.  

7. I was not prepared to give leave on the issue of whether the appellant and her husband were living together as a married couple in the same household for the following reasons.  An appeal to the Upper Tribunal can only be brought on the ground that there has been an error on a point of law arising from a decision made by the First-tier Tribunal (Social Entitlement Chamber) - section 11, Tribunals, Courts and Enforcement Act 2007.  The appellant’s submission was ‘no person acting judicially and properly instructed…could have come to the determination in question’.  The submission was, therefore, an assertion that the tribunal’s decision was perverse and therefore an error of law.  

8. The aspects of the decision attacked as indicating perversity, however, amounted to no more than a disagreement with the facts found by the tribunal and the view it took of the appellant’s credibility.  In essence, the representative sought to put a further gloss on the evidence and suggest further reasons why the tribunal should not have made the findings it did.  It was argued, for example, that the appellant was from a different culture and still married to [her husband], and that the first pregnancy arose when the appellant was very vulnerable while the second pregnancy did not prove the appellant was living with her husband.  It was further suggested that an inconsistency about how often (if at all) the husband stayed overnight with the appellant did not justify the tribunal’s conclusion that the appellant was not a reliable witness; that it was not the appellant’s fault that she did not know where her husband was actually staying during the period in question; that it did not occur to her to return post delivered to him at her address to the sender, that the tribunal’s decision to reject a friend’s evidence was based on flawed reasoning; and that there were many plausible reasons why the husband might have given his wife’s address for a very wide range of purposes, without her knowledge; and that the evidence was merely circumstantial.

9. Where a claimant denies living with a partner and asserts that the partner lives elsewhere, it is unlikely that a tribunal will have before it positive proof of where the other person is living.  A person may say he lives at address x, receive his bank statements at address y, but nevertheless actually live with claimant at address, z.  The tribunal’s task is to assess the evidence, which will very often only be of a circumstantial nature, and decide whether it is persuaded one way or the other on the balance of probabilities.

10. In this appeal, the burden of proof lay on the Authority to show that the appellant had not been entitled to benefit on the basis claimed during the period in question and that there had been a recoverable overpayment.  No single item of evidence was likely to be determinative, and the tribunal did not treat any single item as such.  It did, on the other hand weigh the various items of evidence, including, the use of the appellant’s address for a wide range of purposes, the husband’s frequent presence at the property, the appellant’s inconsistency about the visits, her failure to take any steps to prevent the use of her address by returning post to the sender, the use of her address for employment purposes, the lack of any satisfactory evidence showing that her husband lived elsewhere, and the birth of a further child to the couple long after the marriage was said to be over.  The tribunal weighed the appellant’s explanations, and having given reasons for rejecting them, found on balance that the couple were living together.  The tribunal plainly applied carried out an appropriate analysis of the factors and used its common sense in coming to this conclusion.  Far from being perverse, it is difficult to see how the tribunal could have come to any other conclusion.

11. The representative has asked, as a final matter, whether the Authority can be directed to recover at least half of the overpayment from the appellant’s husband.  I do not consider that the Regulations give any scope for this to be done.  Under the previous form of regulation 101(2)(b) in the Housing Benefit (General) Regulations 1987, the claimant’s partner was a specific target for recovery.  However, under regulation 101(2) of the 2006 regulations, the claimant’s partner no longer comprises a specific person from whom recovery could be made, though he might become a target of recovery if he misrepresented or failed to disclose a material fact.  I am unable to see a misrepresentation by the husband or a failure to disclose, given the absence of a clear legal duty on him in the circumstances of this appeal.  The Authority does have a discretion to recover from a partner under regulation 102(1ZA) in certain circumstances.  This provision is probably applicable at the enforcement stage, not least because (i) only a discretion is given, and (ii) any decision under this regulation 102 is not appealable to a tribunal (paragraph 1, Schedule, Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001).  The question is accordingly a matter exclusively for the Authority.

[Signed on original]                                                S M Lane

                                                                               Judge of the Upper Tribunal

[Date]                                                                     29 January 2010