Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL File No: CH 2731/09

Administrative Appeals Chamber

20 July 2010

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

SOCIAL SECURITY ACTS 1992-2000

 

APPEAL FROM DECISION OF FIRST-TIER TRIBUNAL

 

Appellant: Wirral MBC

Respondents: (1) [the claimant’s landlord]

(2) Secretary of State for Work and Pensions

Claim for: Housing Benefit (Payment to landlord)

First-tier Tribunal: Birkenhead

Tribunal case ref: 062/09/00164

Tribunal date: 22 July 2009 (reasons issued 23.07.09)

 

 

DECISION OF THE UPPER TRIBUNAL

 

The authority’s appeal is allowed. The first-tier tribunal’s decision of 22 July 2009 directing the authority to make the first respondent a payment of rent or housing benefit in respect of the claimant Mr C H for the period from 22 December 2008 is set aside as erroneous in law and replaced under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 with this decision, that whether or not such payments ought to have been made to the first respondent as landlord in the first place under regulation 96(3A) of the Housing Benefit Regulations 2006 SI No 213 as held by the tribunal, any payments made to the claimant in respect of his entitlement to housing benefit for that period pursuant to the authority’s decision under appeal are required by regulation 98 to be offset against anything otherwise payable to the landlord pursuant to the tribunal’s revised decision. The consequence is that, the whole of the benefit in issue having already been paid to the claimant before the authority’s decision was revised on appeal by the tribunal, nothing further can be payable to the landlord.

 

 

REASONS

 

Mr P L Howell QC:

 

1. This case reveals a strange corner of the current policy and practice over the provision of public money for private rented accommodation under the housing benefit scheme for people who without such help would in all probability be homeless, and in the nature of things are often also vulnerable. The social and political issues involved are not matters for judicial comment, but the practical effects shown here of the present policy on payment of benefit to landlords in Local Housing Allowance areas in such cases, in conjunction with the appeal provisions as they have been held to be, do strike me as decidedly odd: I can only suggest it would be a good idea if the Secretary of State were to review the current system and what the present provisions are seeking to achieve.

2. The claimant in this case is not a party to the appeal and has not taken part in the proceedings despite a direction inviting him to do so. He is a man now aged 28 who in October 2008 was housed at the instigation of the appellant authority’s social services department in a flat belonging to the first respondent, a private landlord who owns and operates a number of similar properties in the authority’s area. The claimant had apparently been found squatting with his partner and her 10-year-old daughter in another property belonging to the same landlord, and would otherwise have been made homeless. In accordance with this landlord’s usual practice the claimant was required to, and did, sign a form electing for the housing benefit which he claimed the same day on his new flat to be paid direct to the landlord, and in exchange for doing so was let into possession on 27 October 2008 without being required to pay any deposit or advance rental (which it appears he had no money to do anyway).

3. The claimant was awarded housing benefit and for the first eight weeks of the tenancy the authority paid it direct to the landlord in accordance with that election, pending a decision whether to do so more permanently. However from 23 December 2008 it stopped doing so and began to make the payments by cheque to the tenant direct, considering itself required to do so by central government policy guidance and the regulations on how payment of benefit should be made in Local Housing Allowance areas, the claimant’s flat being one in such an area and subject to a maximum rent determined under regulation 13D of the Housing Benefit Regulations 2006 SI No 213.

4. The regulations about payment are in Part 12 of those regulations and provide so far as material as follows:

Payment to be made to a person entitled

94.- (1) Subject to regulations 95 to 97 (payment to landlords, payment on death) and the following provisions of this regulation, payment of any rent allowance to which a person is entitled shall be made to that person. ...

Circumstances in which payment is to be made to a landlord

95.- (1) Subject to paragraph (2) ... a payment of rent allowance shall be made to a landlord ... -

(b) where ... the person is in arrears of an amount equivalent to 8 weeks or more of the amount he is liable to pay his landlord as rent, except where it is in the overriding interest of the claimant not to make direct payments to the landlord.

(2) Any payment of rent allowance made to a landlord pursuant to this regulation or regulation 96 (circumstances in which payment may be made to a landlord) shall be to discharge, in whole or in part, the liability of the claimant to pay rent to that landlord in respect of the dwelling concerned ...

Circumstances in which payment may be made to a landlord

96.- (1) ... where regulation 95 ... does not apply but subject to paragraphs (3) and (3A) of this regulation, a payment of a rent allowance may nevertheless be made to a person’s landlord where –

(a) the person has requested or consented to such payment;

(b) payment to the landlord is in the interests of the claimant and his family;...

(3) In a case where the relevant authority is not satisfied that the landlord is a fit and proper person to be the recipient of a claimant’s rent allowance, the authority may either

(a) not make direct payments to the landlord in accordance with paragraph (1), (3A) or (3B); or

(b) make such payments to the landlord where the authority is satisfied that it is nonetheless in the best interests of the claimant and his family that the payments be made.

(3A) In a case where a relevant authority has determined a maximum rent under regulation 13D -

(a) sub-paragraphs (a) and (b) of paragraph (1) shall not apply; and

(b) payment of a rent allowance to a person’s landlord may be made where -

(i) the relevant authority considers that the claimant is likely to have difficulty in relation to the management of his affairs;

(ii) the relevant authority considers that it is improbable that the claimant will pay his rent; or

(iii) a direct payment has previously been made by the relevant authority to the landlord in accordance with regulation 95 in respect of the current award of housing benefit.

(3B) Where the relevant authority suspects the grounds in paragraph (3A)(b)(i) or (ii) apply and is considering whether to make payments on one of those grounds, it may make a payment of a rent allowance to the person’s landlord for a period not exceeding 8 weeks..”

5. Thus in a case such as that of the claimant, whose flat was in a Local Housing Allowance area subject to a maximum rent, the normal discretion for the authority to pay benefit to the landlord merely because the claimant requests it or the authority considers it in his or his family’s interests under regulation 96(1) does not apply. Instead the discretion to do so may only be exercised for an initial 8 weeks if the authority considers it possible, or suspects, that the tenant will have difficuly coping with his affairs or will not pay the rent; after that time it may only continue to do so if it considers it likely he will have such difficulty or improbable he will pay the rent. Unless affirmatively satisfied of those preconditions for any exercise of its discretion, it must pay the claimant himself under regulation 94(1) unless and until he runs up arrears of 8 weeks or more, in which case it must switch again to paying the landlord direct under regulation 95(1).

6. That is what the regulations now provide in relation to this type of case and I fully accept that the authority here did its best to apply them conscientiously, navigating through the rather fine distinctions between the possible and the probable which regulation 96 now makes mandatory for LHA cases (though why for these alone, in place of the previous simpler system under paragraph (1), is not apparent from the regulation itself). At the time when the decision in question in these proceedings was made it had already been making payment direct to the landlord for the first 8 weeks of the tenancy, which I infer must have been under regulation 96(3B) on the ground of possibility or “suspicion” from the claimant's circumstances at the time he was let into the property.

7. On 4 November 2008 it had issued the claimant with a form to fill in to give details of why his case might meet the conditions for continued payment to the landlord after the first 8 weeks, and notified both him and the landlord that unless the required information was provided it would not be able to pay the landlord beyond that time. On 11 November 2008 the claimant responded saying that he had mental health problems and “didn’t have to pay a deposit on the understanding the rent would be paid straight to my landlord” but not giving any of the other details asked for or supplying any of the supporting evidence stated on the form to be required: e.g. from a GP or social services to confirm he had difficulty managing his money. On 14 November 2008 the authority replied pointing out the sections of the form that still needed to be completed and again asked the claimant to supply all relevant evidence to support his request, also telephoning to remind him on 18 November 2008, but received no further response at all.

8. When the initial eight weeks had run out on 23 December 2008 without anything further being provided to it by either claimant or landlord the authority, applying central government guidance circulars and its own published “Local Housing Allowance Safeguard Policy” which reflected them, decided that as its enquiries had not produced sufficient evidence to be affirmatively satisfied the case met the higher thresholds of “likely” or “probable” for continued payment to the landlord under regulation 96(3A) it had to fall back to paying the claimant under regulation 94. That decision was communicated to both the claimant and the landlord with an indication that it was open to each of them to appeal: pages 49, 51.

9. On 30 December 2008 the landlord lodged his appeal to the first‑tier tribunal in which he sought to challenge both the policy itself and the decision taken in this individual case. His grounds were (and are) that in his experience of many other similar cases tenants who had the housing benefit put into their hands seldom if ever paid the rent over to him, and it would be more satisfactory from their viewpoint as well as his own if the money was simply paid over to him and they avoided getting into arrears. Accordingly the authority’s power under regulation 96 should, in this as in all such cases, be exercised in favour of continuing direct payment to himself as landlord.

10. In fact, this was a case in which the landlord’s fears were realised; as following the authority’s decision of 23 December 2008 no rent was paid to him out of the housing benefit paid to the claimant, who presumably simply spent the money on something else. Well before the matter came on for hearing before the tribunal, he had run up more than eight weeks’ arrears of rent and from that point on the authority had reverted to paying his housing benefit direct to the landlord once again; this time under the separate duty to do so under regulation 95(1)(b), there being no suggestion this was or could have been contrary to the interests of the claimant or that the exception in regulation 95(3) applied.

11. The landlord’s appeal which came before the tribunal for effective hearing at Birkenhead on 22 July 2009 (Mrs M E Clarke, first-tier judge, sitting alone) therefore concerned only the housing benefit for the nine-week gap from 22 December 2008 for which no rent had been paid. The appeal was agreed on all sides to be by way of a complete rehearing and redetermination of the merits of the authority’s decision of 23 December 2008 that from that date the payments should be made to the claimant. It was a two‑way contest between the landlord and the authority, each of whom appeared and made oral as well as written submissions. The claimant, though named on the record of proceedings as respondent, did not make any representations and there is no record of his taking any part in the proceedings: it is uncertain whether he was even notified the hearing was going to take place.

12. Having heard the evidence of the landlord as to his own experiences of what he described as the “unbelievably flawed” government policy that housing benefit should normally be paid to tenants to encourage greater responsibility in managing their affairs and paying rent for themselves, the first-tier judge concluded that the evidence before her was sufficient to show that on balance the claimant, a person who had previously had an unsettled lifestyle, had been likely to have difficulty with the management of his financial affairs and as a result it had been improbable that he would have paid the rent out of the housing benefit issued to him.

13. Accordingly she held the decision on 23 December 2008 ought to have been to continue making payments to the landlord. She therefore allowed the appeal, revising the authority’s decision of 23 December 2008 by substituting her own to that effect, on the basis that for this purpose the tribunal was required on the appeal to stand in the authority’s shoes and remake the decision, including the exercise of any discretion, afresh albeit retrospectively. The formal notice of her decision dated 22 July 2009 at page 106 makes clear that its intention and effect was to hold the landlord now entitled to payment from the authority of the amount of the claimant’s housing benefit for the nine-week period despite the payments already made (she was of course made well aware by the landlord’s evidence that the full amount for the nine weeks had already been paid to the claimant but none of it passed on to him as rent), as she expressly directed in the final sentence that “In those circumstances payment of rent is to be made to the landlord, the appellant.”

14. The reasoning which led the first-tier judge to substitute her own decision for that of the authority on the questions it was required to consider under regulation 96(3A) is set out in the following passage at the end of her statement of reasons issued to the parties on 23 July 2009, at pages 108-9:

“6. ... The tribunal found that, on the balance of probability, [the claimant] had previously had an unsettled lifestyle and that he had been in receipt of benefits for almost two months prior to making his claim for Housing Benefit, the tribunal accepted that he had responsibility for a child and partner and that given the nature of his circumstances he was likely to have difficulty in relation to the management of his financial affairs and that as a result it was improbable that he would pay his rent if Housing Benefit was issued to him, The tribunal decided that there was sufficient information to enable the local authority to decide to pay Housing Benefit direct to the landlord when it made its decision on 23 December 2008 and that that is the decision it ought to have made.

7. For the reasons set out above, the appeal succeeds.”

15. This appeal is brought by the authority against that substituted decision, on the ground that insufficient clear evidence had been provided of the mental health and other problems said to cause the claimant difficulty in managing his own affairs, and that the tribunal’s contrary judgments on the questions the relevant authority is required to consider under regulation 96(3A) had been based on “generalisations”, or supposition rather than hard evidence, and were not justified. Departmental guidance to housing benefit authorities was to be cautious about accepting evidence from the landlord alone, because of the landlord’s direct interest in the outcome, but that was basically what the tribunal had done here in accepting this landlord’s subjective (and as the tribunal said feelingly, extensive) evidence of his experiences of this and other housing benefit tenants. The authority’s decision had been in accordance with the government’s guidelines and its own published Safeguard Policy for such cases. It should not have been disturbed.

16. When the matter first came before me it appeared to me, as I said in the directions I gave on granting the authority leave to appeal, that there were some general questions about the way this legislation was intended to work, and in particular the nature and scope of any appeal against an authority’s discretion whether to make payment to a landlord under regulation 96, that made it desirable for the Secretary of State to be joined as an additional party and to make submissions. That was done and I am most grateful for a thoughtful and helpful submission by Mr Wayne Spencer on behalf of the Secretary of State dated 18 January 2010 at pages 130 to 133, supporting the authority’s appeal and suggesting that the question of whether payment should have been made to the landlord for the nine weeks in dispute should again be remitted to the first-tier tribunal for redetermination. Entirely understandably, the landlord opposes this and in numerous submissions and observations reiterates his view of the impracticability of the stated policy that even potentially vulnerable tenants should be encouraged to take responsibility for their rent and should normally have the housing benefit paid to them. He submits that the tribunal’s decision was correct and should be allowed to stand, with the result that the authority will be obliged to pay him an amount equal to the claimant’s housing benefit entitlement for the nine weeks in question notwithstanding that this has already been paid once to the claimant himself and the chances of anybody getting it back from him must be slim in the extreme.

17. The three questions that concerned me in particular were:

(a) is a decision of the local authority not to exercise its limited power under regulation 96(3A) of the Housing Benefit Regulations 2006 SI No 213 to make payment of a rent allowance to the claimant’s landlord appealable by the landlord at all under paragraph 6 of Schedule 7 Child Support, Pensions and Social Security Act 2000, as a “relevant decision” within paragraph 1 or otherwise?

 

(b) if it is, what is the scope of the appeal? Is it a complete re-exercise by the tribunal of what would otherwise appear to be an administrative discretion given to the paying authority under regulation 96, or something narrower?

(c) if the authority’s decision is made in good faith and within its powers on the information before it, but the answer to (b) is that it is nevertheless open to the tribunal to substitute its own view of the merits and reverse the decision retrospectively as happened here, what is the effect? Does the authority have to pay out another lot of benefit for the same weeks as it has already paid the tenant?

18. In response Mr Spencer draws my attention to the authorities in which other minds have also grappled with these or similar questions and submits that the answer to the first one is yes, on the authority of CH 2986/05 paragraphs 36-41 and R(H) 2/08 paragraphs 31-36 holding that a decision to switch payment of housing benefit between landlord and tenant involves a decision to supersede the awarding decision on the claim, and CH 180/06 paragraphs 19-21 and CH 2986/05 paragraph 52 holding the landlord is self-evidently a “person affected” by such a decision. As to the second question he submits that the nature of such an appeal is by way of a complete rehearing (save that a tribunal cannot take into account any circumstances not obtaining at the time of the decision under appeal), on the authority of R(IB) 2/04 paragraphs 19-33; so that the tribunal is required to consider for itself whether the conditions of regulation 96(3A) are met and what should follow from that, to this end standing in the shoes of the local authority and exercising any discretion the regulation confers. As to the third however he submits that an authority is not obliged to make duplicate payments where a tribunal retrospectively decides that housing benefit already paid out to the claimant for a past period should have been paid direct to the landlord instead, the authority for this being R(H) 2/08 where it was held that the offset provisions in regulation 98 operate to prevent this, so a decision purporting to make further money payable on the basis of the tribunal’s own substituted discretion in those circumstances would be wrong in law (cf. R(H) 1/08 where that principle was applied in the actual decision of the Commissioner).

19. It is not necessary for the present purpose to give any actual decision on the first two questions and I refrain from doing so. At some point the principles involved may need to be reconsidered, perhaps at a higher level, because it does seem odd and unusual if the discretionary and administrative matters housing benefit authorities are charged with considering for themselves under regulation 96, which must include non-justiciable questions, are to be reconsidered at large by a tribunal consisting of a lawyer without any of the responsibilities and constraints of such an authority, who is then supposed to substitute his or her own subjective view on the merits retrospectively: a far cry from the more normal judicial control of such matters by way of review to ensure administrative authorities invested with discretionary powers stay within them and act properly and legally. But for present purposes it can be simply assumed that the answers suggested by Mr Spencer and the authorities he cites are correct on those two questions.

20. Accepting those answers, but also necessarily constrained by the fact that the appeal before me under section 11 of the Tribunals, Courts and Enforcement Act 2007 is only an appeal on law, I cannot pronounce on the main question which has concerned both the authority and the landlord, of what was the “right” decision to have made on 23 December 2008 about the payment of the claimant’s housing benefit, because that is simply not a question of law. It is an administrative and practical question about a conditional discretion placed in the hands of the relevant authority by regulation 96(3A), as to which of two possible people should be the payee of an amount of housing benefit to which it is not (and cannot be) disputed that the claimant was and is entitled by virtue of a properly made award on his claim. Nor can it be disputed that regulation 94 makes it prima facie payable to him as a matter of duty on the part of the authority, subject only to regulation 96(3A) under which the authority has a discretion to make payment to the landlord if certain conditions are met, but does not have to do so.

21. This is not in my judgment a case where the authority’s original decision could be said to have been wrong in any legal sense. It directed its mind to the right questions under regulation 96(3A) and was correct in saying that it had not been provided with the evidence it had (reasonably) asked for to demonstrate the conditions for its discretion were met and this was a proper case to exercise it. In finding it was not so satisfied, and was therefore bound to apply the fallback provision in regulation 94, it was so far as I can see acting squarely in accordance with the departmental guidance and with its own “Safeguard Policy” which central government had encouraged authorities to publish and apply, in conformity with the published policy for local housing allowance areas that:

“A key feature of the LHA arrangements which were rolled out nationally from April 2008 is that, wherever possible, Housing Benefit (HB) is paid to the tenant rather than to the landlord. Empowering customers to budget for and pay their rent themselves, rather than having it paid for them, helps develop the skills unemployed tenants will need as they move into work.”

(DWP Local Housing Allowance circular to local authorities “Paying benefit and applying the safeguards: A good practice guide”).

22. It was also applying the published interpretation in its own Safeguard Policy document, I am sure also reflecting central government guidance, of the conditions in regulation 96(3A) that a relevant authority only has power to continue direct payment to a landlord after the first 8 weeks if it considers it “likely” the claimant will have difficulty coping with his financial affairs or “improbable” that he will pay his rent, so that these powers (unlike that in regulation 96(3B)) depend on its being affirmatively so satisfied and do not become exercisable on mere suspicion or possibility of such a thing:

“The national roll out of Local Housing Allowance (LHA) on 7 April 2008 removes the right from customers to choose to have their Housing Benefit payments sent directly to their landlord. This change in national policy is a fundamental part of the Department for Work and Pensions (DWP) agenda of ‘Welfare to Work’ and the reform of Housing Benefit and will support the DWP’s specific aims of ‘personal responsibility’ and ‘financial inclusion’. ...

The DWP has provided guidance on when direct payments to the landlord may be appropriate, when a tenant ‘can’t pay’ or ‘won’t pay’ or if a tenant is ‘eight or more weeks in arrears’ and this guidance forms the framework of Wirral’s ‘Safeguard Policy’. ...

Identifying customers who are unlikely to pay their rent

The intention of this particular element of the ‘Safeguard Policy’ is to prevent tenants falling into rent arrears (and being threatened with eviction/homelessness) where it is ‘improbable that they will use their Housing Benefit to pay the rent’

The phrase ‘improbable’ means that there must be a degree of certainty that the tenant will not pay his/her rent. It is not sufficient to assume that there is a ‘possibility’ that the tenant will not pay his/her rent. Many tenants, regardless of their benefit status, carry a risk that they may not pay their rent. ...

It is important that we distinguish between tenants who are genuinely unlikely to pay their rent and those who may claim that they are not likely to pay their rent because they would prefer not to take responsibility. Each case will be looked at individually, on its own merits ...

We will however, assume that unless evidence to suggest otherwise is received that all tenants affected by LHA will pay their rent and so payment will usually be made to the claimant unless any of the other criteria for making payment to the landlord are met. ...

Identifying customers who are likely to have difficulty managing their own affairs

The phrase ‘is likely’ means that there must be a degree of certainty that the tenant will be unable to manage their financial affairs. It is not sufficient to assume that there is a possibility that the tenant may have difficulty in managing their financial affairs or that tenants in certain circumstances carry a risk that they may be unable to manage their financial affairs.

We must distinguish between tenants who choose to manage their finances in a less organised way and those that genuinely have difficulty managing them. ...

Tenants who are likely to have difficulty managing their financial affairs are deemed to be ‘vulnerable’ tenants. Some tenants may wish to be classed as vulnerable simply because they would prefer to have payments sent directly to their landlord. The ‘vulnerability’ provision cannot be used to get circumvent the fact that there is no longer a provision for the tenant to request payment direct to their landlord.”

23. One may bilk at some of the pseudo-business jargon in the departmental guidance or (like the landlord) regard the basic assumptions behind it as muddleheaded, but those passages illustrate the legitimate social and political aims sought to be achieved by the changes in practice and there is no conceivable way against that background that the authority’s decision against exercising its discretionary power on 23 December 2008 to continue paying the landlord could be regarded as wrong, misdirected or unreasonable on the scant evidence it then had before it.

24. Conversely however the view on the merits of the same question taken by the tribunal, on the amplified evidence presented to it, cannot in my judgment be said to have been “wrong” either. These were in my judgment simply two equally tenable and justifiable conclusions on the questions of degree and administrative discretion in regulation 96(3A), each quite properly reached by the relevant authority and the tribunal considering the matter for themselves in the exercise of their respective separate functions under the legislation and the appeal system as it has been held to be. The possibility (perhaps even probability) that the matter will appear differently to a tribunal with amplified evidence and the inevitable influence of hindsight (even though this tribunal was careful to direct itself that the question required to be judged as at 23 December 2008, correctly in accordance with paragraph 6(9)(b) of schedule 7 to the Child Support, Pensions and Social Security Act 2000) is inherent. A further oddity is that the tribunal is not of course bound to apply departmental policy or guidance whereas the authority in practice is. But those appear to be the inevitable consequences of the appeal provisions and the undisputed interpretation of them noted above.

25. I cannot therefore say the decision reached by the tribunal in this case on the way the discretion should be exercised was open to challenge as a matter of law even though it differed from that of the relevant authority: both decisions were within the range of reasonable responses to a difficult and uncertain situation given the claimant’s background and circumstances as at 23 December 2008. The authority’s decision had been a perfectly proper one having regard to its state of knowledge and the policy it (reasonably) considered itself bound to apply; but so equally was that of the tribunal, freed of policy constraints and properly based on the evidence to which it referred in paragraph 6 of its statement of reasons, from which it was in my view reasonable, though certainly not inevitable, to conclude that the claimant would as at 23 December 2008 be likely to have difficulty in managing his affairs and unlikely to pay his rent properly if the money was put into his hands.

26. When such a decision as to “likelihood” or “probability” has to be made as regards a future period there must by definition be an element of “supposition” as to future events which are in their nature uncertain. I do not therefore think the tribunal’s reasoned reassessment of the risk as it stood at the date of the decision under appeal can be said to have “crossed the line that separates legitimate inferences from the available evidence on the one hand from sheer supposition on the other” as the submissions from the authority and Mr Spencer suggest. Its conclusion was as I have already said a tenable view, albeit differing from the equally tenable view actually taken by the authority at the time. I am unable therefore to accept the submission that the tribunal’s decision should be set aside as erroneous in law on that account.

27. As also pointed out by Mr Spencer it appears probable that there was a technical defect in the tribunal’s procedure in that there is no record in the appeal bundle that the claimant himself was ever notified of the tribunal hearing, even though he too was a necessary party to the appeal (cf. CH 2986/05 at paragraphs 52 to 54) as a “person affected” by the result. I also have before me the first‑tier tribunal’s own case file which in accordance with the usual practice has been supplied to the Upper Tribunal for the purposes of this appeal and can confirm that this does not contain any such indication either, or show that any of the usual notifications or opportunities to take part in the appeal proceedings as a party in his own right were ever offered to the claimant; though the landlord in recent written observations to me does mention that he had himself invited the claimant to attend the tribunal hearing though he failed to do so.

28. On the balance of probabilities and in the absence of anything clearer I accept Mr Spencer’s suggestion that there was a technical defect in the tribunal’s procedure here which means that its decision process strictly “involved the making of an error on a point of law” within the meaning of section 12(1) of the 2007 Act. However in my judgment it is clear (not just on the balance of probabilities, but also beyond reasonable doubt) that this was an error only in name, having no practical consequences. The claimant’s conduct and the landlord’s evidence on this, which I accept, show there was no question of the tenant having any interest in or intention to attend or take part in the proceedings; apart from anything else he had of course himself signed elections at the outset asking for the whole of his housing benefit to be paid to the landlord throughout.

29. Accordingly in my judgment this was a case where, if there was any error in the tribunal’s decision on this account it is also a case within section 12(2)(a) of the 2007 Act where I need not set aside the decision and one where I should exercise the discretion in that subsection against doing so. For the same reason it cannot be counted an error on the part of the tribunal not to have attempted to insist on the claimant appearing before it in person before going ahead and deciding the case on the evidence before it on 22 July 2009, there being no suggestion from either party before it that it should do anything else. I accordingly decide against setting aside the first‑tier decision on the alternative procedural grounds submitted in support of this appeal.

30. The third and final question posed in my direction of 10 December 2009, thus raised specifically as an issue on this appeal, of whether the authority is obliged to pay out another lot of benefit for the same weeks as it had already paid the tenant if the tribunal on appeal revises its decision so as to change the payee, is therefore the one that must determine the outcome of this case.

31. On this I accept Mr Spencer’s submission that I should follow and apply the answer to this question given in R(H) 2/08, so that the amounts of housing benefit already paid under the authority’s original decision of 23 December 2008 are to be offset against any arrears of entitlement that otherwise arise under the revised decision substituted by the tribunal on 22 July 2009 with the result that in this case nothing further can be payable to the landlord.

32. Regulation 98 provides, so far as material:

“Offsetting

98.- (1) Where a person has been paid a sum of housing benefit under a decision which is subsequently revised or further revised, any sum paid in respect of a period covered by a subsequent decision shall be offset against arrears of entitlement under the subsequent decision except to the extent that the sum exceeds the arrears and shall be treated as properly paid on account of them.”

33. As pointed out by the Commissioner in R(H) 2/08 at paragraph 39, it is the amount of the entitlement under the two decisions that has to be offset, notwithstanding that the two decisions require the entitlement to be paid to different recipients. Consequently as the claimant’s entitlement in this case remained the same amount throughout the period of nine weeks in issue and that has already been paid in full to the claimant himself, no more can (or could ever have) become payable to the landlord for those nine weeks by virtue of the first-tier decision revising that of the authority on appeal by holding that the same amount should have been paid to the landlord instead.

34. No contrary submissions have been put forward by the landlord against that interpretation of the law and I accept and adopt it as a fair and workable reading of the provision, even though as Mr Spencer says the language of regulation 98 is not perhaps as clear as it might be. I specifically confirm that in my judgment its reference to a decision being “revised” includes a case such as the present where an original decision is revised by a tribunal altering it on appeal. In those circumstances the tribunal was in error to hold any payment due to the landlord and I make the order set out above.

 

 

P L Howell

Judge of the Upper Tribunal

20 July 2010