CH/1903/2009

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal by the claimant succeeds. In accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decisions made by the First-tier Tribunal (Social Entitlement Chamber) sitting at Plymouth on 26^th March 2009 (reference 200/08/01276). I substitute my own decision to the effect that there is no recoverable overpayment of housing benefit or excess council tax benefit in respect of the period 3^rd September 2007 to 3^rd August 2008.

Background and Procedure

2. The claimant is a woman who was born on 25^th February 1950. She had been entitled to housing benefit and council tax benefit from the respondent local housing authority (“the authority”) until 26^th March 2007, when entitlement ended because of an improvement in her financial circumstances. Subsequently she made new claims on or about 31^st August 2007. One of the authority’s officials visited her to complete or to help her to complete the claim form. She declared that she was in receipt of child benefit in respect of her son (born 10^th September 1989) and this appears on the claim form (page 19 of the file). She provided bank statements in support of her claims which also showed receipt of child benefit. The official provided an estimate of the amount of benefit to which the claimant would probably be entitled.

3. On 27^th September 2007 the authority wrote to the claimant informing her that her application had been processed and that “Notification letters confirming this are enclosed”. The enclosures consisted of a further five pages of calculations set out in what might be described as a “user-unfriendly” way. The covering letter also referred to adjustments being made in respect of a previous period of payment, and to a pending claim for income support. The enclosed calculations did not in fact refer to the receipt of child benefit; neither did the calculations referred to in the following two paragraphs.

4. On 31^st October 2007 the claimant contacted the authority to query why the benefit awarded was less than the estimate and to point out that income support would be awarded as from 25^th September 2007. She again stated that child benefit was in payment. Another covering letter and a further 5 page batch of calculations were sent to the claimant on 3^rd and 4^th October 2007.

5. There were then further queries about the income of the claimant’s husband which resulted in a further 20 pages of calculations being sent on 22^nd October 2007 and a further five pages being sent on 4^th February 2008. Annual upratings led to a further eight pages of calculations being sent in February and March 2008.

6. In August 2008 the claimant completed and returned a benefit review form and it was on examining this that the authority realised that, notwithstanding all the previous calculations, it had failed to take account of the claimant’s receipt of child benefit. On 10^th September 2008 it decided that there had been a recoverable overpayment £410.39 housing benefit and recoverable excess council tax benefit of £111.81 in respect of the period 3^rd September 2007 to 3^rd August 2008. On 24^th September 2008 the claimant appealed to the tribunal against this decision of the authority. On 3^rd November 2008 the matter was transferred to the Social Entitlement Chamber of the First-tier Tribunal. That tribunal considered the matter on 26^th March 2009 and confirmed the decision of the authority, except to the extent of reducing the recoverable overpayment of housing benefit to £406.43. The arithmetic involved is not now the subject of any dispute. On 6^th July 2009 the First-tier Tribunal Judge refused the claimant’s application for leave to appeal against the decision of that tribunal. She now appeals by my permission granted on 18^th August 2009. The authority opposes the appeal and supports the decision of the tribunal.

The Rules About Overpayment

7. So far as concerns the present appeal, the position in relation to housing benefit is governed by regulation 100 of the Housing Benefit Regulations 2006, which provides that any overpayment shall be recoverable except one to which regulation 100(2) applies. Regulation 100(2) applies to:

100(2) … an overpayment which arose in consequence of an official error where the claimant … could not, at the time of receipt of the payment or of any notice relating to that payment, reasonably have been expected to realise that it was an overpayment.

8. So far as is relevant to the present appeal, regulation 100(3) provides that “overpayment which arose in consequence of an official error” means an overpayment caused by a mistake made, whether in the form of an act or omission by the relevant authority or by an officer or person acting for the authority, but only:

100(3) … where the claimant, a person acting on his behalf or any other person to whom the payment is made did not cause or materially contribute to that mistake, act or omission.

9. There are similarly worded provisions in relation to council tax benefit in regulation 83 of The Council Tax Benefit Regulations 2006.

10. In the present case it is not disputed there were overpayments, that they arose in consequence of a mistake or mistakes made by the authority, and that the claimant did not cause or materially contribute the mistake or mistakes. That leaves the question of whether, at the time of receipt of payment or of any notice relating to a payment, the claimant could reasonably have been expected to realise that there was an overpayment.

The Tribunal

11. The tribunal was influenced by the instructions to the claimant in the covering letters to check the details, by the absence from the various sets of calculations of any reference to child benefit, by the claimant’s previous experience of claiming the relevant benefits, and by the fact that the mistake(s) related to the absence of a source of income rather than problems with the arithmetic. The key part of the tribunal’s statement of reasons was in paragraph 8 (page 142 of the file):

“The omission of a source of income is readily apparent. All the more so when comparison is made with the letters which had been sent to [the claimant] in connection with the ending of her previous claim less than 6 months earlier. I therefore do not accept that [she] could not reasonably have been expected to realise that there was an overpayment, since this would be the natural and foreseeable consequence of a failure to take a source of income into account in the calculation of an entitlement to an income-related benefit.”

12. It seems to me that the final part of this is expressed in a slightly obscure way. The real point is the tribunal’s finding that “The omission of a source of income is readily apparent”.

Conclusions

13. The parties have referred to particular decisions by Social Security Commissioners, but each case turns on its own facts and I have not found them helpful. Regulation 100(2) as set out above requires the tribunal to be satisfied that a particular claimant could not have reasonably been expected to realise that there was an overpayment (or an error that would necessarily lead to an overpayment).

14. It seems to me that the tribunal took inadequate account of the fact that the amount of benefit was less than the claimant had been led to expect, the complexity of her financial affairs and the mass of calculations faced by her. It seems to have assumed that because the omission of a source of income was readily apparent to the tribunal, it must have been readily apparent to this particular claimant. I also note that the claimant had made a further disclosure on 31^st October 2007, and that the tribunal ignored this in its decision relating to the period of the overpayment. These matters seem to me to mean that the reasoning was inadequate and that accordingly the decision of the tribunal was made in error of law. For that reason I set aside its decision.

15. There is no significant factual dispute and it is appropriate that I make my own decision. For the reasons that I have indicated above I am not satisfied that the authority has demonstrated that at the time of receipt of payment or of any notice relating to a payment, this particular claimant could reasonably have been expected to realise that there was an overpayment.

16. For the above reasons this appeal by the claimant succeeds

H. Levenson

Judge of the Upper Tribunal

29^th October 2009