Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CH/1903/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Mrs A Ramsay Judge of the Upper Tribunal

 

 

 

REASONS FOR DECISION

 

1. The decisions of the Southampton tribunal sitting on 15 June 2011 (the first tribunal) and the Havant tribunal (the second tribunal) sitting on 8 March 2012 are erroneous in point of law, and I set them aside. This is not, however, to the claimant’s advantage, as I substitute my own decision which is the same as that of the second tribunal.  The first tribunal misdirected itself in law by including recovery of discretionary housing payment and limiting itself to the date of the first decision by the local authority.  The second tribunal it seems to me reached the right conclusion, but was without jurisdiction to do so as the decision of the first tribunal had not been set aside at the time that the second tribunal considered the same period.

 

2. It is with considerable reluctance that I set aside the decisions of the two tribunals.  The claimant’s appeal is unmeritorious, but one criticism made of the local authority by counsel for the claimant was certainly justified, and that concerned the prolixity and confusion of the evidence presented by the local authority.  The two tribunals, (both before the same judge) struggled valiantly with the mass of evidence before them.

 

3. The local authority in this case, as many local authorities still do, despite the length of time for which tribunals have had jurisdiction in these cases, has had great difficulty in getting its evidence into a presentable form, and the considerable repetition of documents in the 740 pages before me has certainly not helped.  Nor has the practice of describing certain decisions in terms of the invoice numbers relevant to the various requests for repayment issued by the local authority.  Nonetheless, it is possible, albeit with what I consider to be an unacceptable degree of difficulty, to discern what the decisions are.

 

4. The local authority will no doubt feel this is a  harsh criticism in a case where it has struggled to respond to each occasion on which the claimant has disclosed a little more of her true circumstances.  Nonetheless, what was required to present the evidence to the claimant and to the tribunal in an intelligible form was a simple statement of the total amount of housing benefit paid to the claimant, less the total amount of housing benefit which should have been paid to her.  The same was required for council tax benefit.  I accept that to reach that figure, the local authority would still have had to go through all of the various stages which it has painstakingly undertaken.  I doubt that these were necessary for the appeal, but if the authority wanted to produce these, for the sake of clarity, they could have been reduced to an appendix setting out the various stages. In fact there were few changes of circumstances during the length of the benefit award, which started in April 2010 and came to an end when the claimant moved to a different local authority area in March the following year. It was unnecessary for the purpose of the appeal to produce all the calculations the local authority had carried out, as the majority of these were based on the claimant’s incomplete evidence as she, item by item, gradually disclosed more of her financial circumstances. What was needed was a decision reflecting her circumstances as they were eventually discovered to be.

 

5. The claim to housing benefit was received on 27 April 2010.  The claimant was the tenant of a privately rented dwelling which she occupied together with her husband. The responses in the claim form show that the claimant was paying for the upkeep of two students in Uganda.  The claimant herself was not working, but her husband was working for 35 hours a week and details of his employment were given. The claimant was intending to claim benefit herself from the DWP but said she was not as yet in receipt of any income.  Part H of the claim form asks about “cash, savings and investments (see the notes)”.  To the question whether any bank accounts were held, the claimant said “yes”, and said that she and her husband had a joint current account with Lloyds TSB which had £3,400.00 in it at the time of the claim.  No other account was disclosed.  One of the questions in this section was “Do you or your partner have any other cash, savings or investments, or money owing to you which you have not told us about? (such as PEPs, TESSAs, ISAs).  If yes, please give details”. The claimant said they had not This was in fact untrue, and they both held ISAs as well as another undisclosed bank account. 

 

6. Under section K, “extra information,” the claimant added that her husband worked irregular hours and his basic contract was part‑time for 16 hours a week, but in the current year his average hours had been around 35 hours a week.  He had expenses by way of a mileage allowance and for the cost of his internet connection which did not represent salary.

 

7. I am far from sure that even now the local authority has seen all of the financial information relevant to the claimant and her husband, as the bank accounts disclosed scant evidence of  motoring expenses, and indeed remarkably few expenses of any other sort either, despite the fact that the rent was said not to include water, heat or light charges.  Nor did I identify evidence of  regular outgoings on an internet subscription.

 

8. Attached to the claim form were pay advice slips for the husband’s employment showing  pay dates of 28 February 2010, and 28 March 2010.  For the February 2010 payslip mileage expenses of £425.60 had been allowed and an internet expenses allowance of £21.79.  The payslip for March 2010 showed mileage expenses of £399.70 and again an internet payment of £21.79.  The March 2010 payslip showed the year to date gross pay which was just under £18,000, of which £16,541.00 was taxable pay.

 

9. A copy of the Lloyds TSB bank statement for the period 19 February 2010 to 17 March 2010 is also attached.  The income shown includes the husband’s net pay of £1,529.62, a deposit of £100 from an unidentified source, an interest payment of £3.19, and the sum of £186.58. This appears to be a payment of maternity allowance which was not disclosed as income on the housing and council tax benefit claim form itself.

 

10. The outgoings shown on the accounts which came to light are extraordinarily low:  £1 spent at Iceland on a debit card, £6.91 at Tesco, £7.78 insurance, £24.53 at a service station (the first mention of any expense related to motoring) and so on.  It would be tedious to repeat all these in full, but the number of items under £10.00 is notable, with the single largest amount spent on grocery shopping being £34.34 spent at Lidl.  There is a cheque for £650 debited from the account, which seems to be payment of rent, and small amounts spent at service stations, for example £12.12 Shell Forest Edge, £4.11 at another Shell garage, as well as a more reasonable amount £37.39.  There is an amount debited to “U Drive” which could be a car hire contract, but scrutiny of the statement will show that the greatest number of transactions shown are for less than £20.00.

 

11. The very limited outgoings to my mind raise many questions, but the local authority accepted this claim at face value and awarded housing benefit and council tax benefit with effect from 12.4.2010. 

 

12. By June of 2010 the husband’s work had ceased, and he was on income-related ESA.  With the reduction in their income, there was an increase in the amounts of housing benefit and council tax benefit awarded, but this still left them with a problem of meeting their housing costs, and the local authority on 29 July 2010 awarded a discretionary housing payment award  in respect of both rent and council tax.  Together these amounted to over £25.00 per week.  Discretionary housing payments are not payments of housing benefit or council tax benefit and therefore are not included within the system of appeal established by paragraph 6 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000.  Discretionary housing payments are provided for in section 69 of the Child Support, Pensions and Social Security Act 2000 and this enables local authorities to make payments by way of financial assistance to persons who are entitled to housing benefit or council tax benefit or both.  As one might expect from its name, a discretion is conferred upon an authority as to whether or not to award discretionary housing payments in any particular case.  Section 69(1)(g) and (h)  enables the local authority to cancel the making of further payments and to recover the payments already made.  There is no right of appeal against a refusal to make a discretionary housing payment, nor against a decision to recover one.  Accordingly, the criticism of the local authority for including details of the amounts of discretionary housing payments it sought to recover as part of the appeal, while technically correct, was ultimately futile, as the authority was entitled to recover it in any event. 

 

13. However, in July 2010 the local authority became aware that in the assessment of the claimant’s husband’s benefit claim, the Department of Work and Pensions had attributed £19.00 tariff income.  This, of course, could not be explained by the sums held in the Lloyds current account disclosed, and on 24 August 2010 the husband visited the local authority “Gateway” office and brought with him the claimant’s Barclays Golden ISA statement and details of their other two Barclays accounts.  There is no indication on the statements as to exactly when the accounts were first opened, but the balance on 1 May 2010 on the claimant’s Golden ISA was £3,719.05.  On 13 August 2010, following a withdrawal of £270, the balance of £3,485.84 was transferred to another account.  There is also a statement for an account in the husband’s name, “Golden ISA 2” and this shows a brought forward balance on 1 July 2010 of £4,107.39 and £1,176.67 was transferred out of this on 13 August 2010.  There was in fact another Barclays account, still not disclosed at this point. On the evidence disclosed, the local authority attributed tariff income of £6.00 per week.  For the period from 5 July 2010 the local authority took into account the husband’s ISA (though exactly when this was opened and from what funds is not explained and not taken into account in this assessment) and having found that the total capital exceeded £11,500.00, attributed tariff income of £23.00 per week.  The Lloyds TSB current account statement for the period 30 April to 2 June 2010 shows an opening balance of £4,520.00, from which £3,500.00 was withdrawn on 4 May.  The unusually low amounts spent noted in respect of the previous statement is also shown here.  An amount of £9.03 spent at a Texaco Station, £7.97 at a Shell Station, insurance amounts of £1.99 and so on.  By this time the claimant was receiving child benefit which is shown as an entry on the current account on 28 May 2010, as well as the husband’s net pay of £1,594.00.  A bank statement for the period 9 July to 9 August 2010 shows a receipt of benefit income by way of employment and support allowance being paid into the account, as well as the wife’s maternity allowance and by now child tax credits as well.  The £650 on a previous occasion withdrawn by cheque is by now a standing order to the landlord for £650.00 per calendar month. 

 

14. The husband had a separate current account, also with Lloyds, identified by its last four digits 0060.  It is not clear when it was opened, but it was closed on 9 July 2010 when a cheque for the balance of £1,319.15 was written out.  Evidence given by the claimant suggests that this contained some sort of work float which the husband was required to hold. This did not form part of his remuneration and was to be returned by him to his employer on the termination of his employment.

 

15. Bank statements for the Lloyds current account ending 4142 showed the receipt by transfer of various amounts which were withdrawn shortly thereafter.  Although this was not disclosed at the time, the sum of over £13,000.00 was used in September 2010 for the purchase of a plot of land in Uganda, the country from which the claimant came.  Unfortunately, the numbering in the first part of the file is illegible, and therefore I cannot give any page reference.  But on 4 February 2011 the local authority has stamped as “originals verified” evidence of the purchase of land in Uganda.  Given that one of the claimant’s arguments is that land is worth less in Uganda if it is held by a woman, I note this document shows that it was she and her husband jointly who acquired the land as purchasers.  The purchase price of the land was 43,000.000 Ugandan shillings and this was acknowledged as received in cash.  There is a handwritten note on this agreement stating that 43,000.000 Ugandan shillings at the exchange rate prevailing on 9 September 2010 (the purchase date) was £12,750.00.

 

16. By November 2010 the claimant had been awarded contribution based jobseekers allowance, and evidence had also been received of a Barclay’s current account, the last four digits of the account number being 4142.  The local authority, not surprisingly, was having considerable difficulty keeping up with the claimant’s circumstances and on 28 January 2011 suspended her award “to avoid any overpayments of benefit occurring”.  The claimant’s husband responded to this with an intemperate e-mail dated 3 February 2011 which, ironically in the circumstances, said “you have been receiving all the documents; bank statements etc. – so are you calling us liars or fraudsters?” I am not suggesting they were either of these things, but it is beyond question that they did not make the required disclosure of their circumstances for the purpose of the housing and council tax benefit claim.

 

17. The following day, 4 February 2011, the claimant’s husband attended at the “Gateway” local authority office to say that his ESA had been reduced to £65.00 a week because of his wife receiving contributory jobseekers allowance, and that this income plus child benefit and tax credits was their only income.  A letter was provided with regard to the value of the land “his wife owns in Uganda [it was of course owned by them both] and most recent bank statements”.  But the saga of the claimant’s dealings with the local authority was not yet at an end.  By 8 February 2011 the local authority had looked again at the claim and decided that there was still entitlement to benefit and that payments would resume.  The authority’s letter set out the amounts which would be awarded, but also calculated some overpayments.  The calculations used by the local authority took into account the land in Uganda at a capital value of £10,767.31, and this meant of course, together with the disclosed sums held in the bank, there was tariff income from capital to be set against any potential entitlement.  A further letter from the local authority on 1 March 2011 contained yet further adjustments, and a letter issued on 3 March 2011 showed that overpayments would be recovered from current benefit payments, notwithstanding that by this time the claimant had appealed against recovery of overpayments.

 

18. On 15 March 2011 the appeal came before the tribunal judge who has dealt with this case throughout.  Sensibly, he adjourned with directions for production of further evidence and submissions, and  he reserved the matter to himself.  In response to these directions the claimant’s husband explained to the local authority that the Lloyds current account ending 0060 was a “work float account” which he held on behalf of his employer, and accordingly the money did not belong to himself or his wife. All the accounts for it down to the date of  its closing were produced, as were further copies of financial evidence previously disclosed.

 

19. On receipt of this evidence, the local authority then attempted to cut through the Gordian knot by issuing a further decision dated 14 April 2011.  This showed the calculation of benefit entitlement from 12 April 2010 up to 21 March 2011.  On this reckoning, benefit entitlement did not commence until 30 August 2010.  This meant that for the previous period, that from 12 April 2010 onwards there was no entitlement because the claimant’s capital was in excess of the £16,000 capital threshold.  It set out further, and different,  benefit overpayments as well as an underpayment.  Details summarising entitlements over this period, showing the old awards, the new awards (in some cases nil), the weekly amounts overpaid, and the running total, were set out in fairly straightforward terms.  Also on 14 April 2011 the local authority calculated overpayments of discretionary housing payments.  On its new calculation, there was no entitlement and it asked for the discretionary housing payments in respect of both rent and council tax to be repaid.

 

20. On 19 April 2011 the local authority set out in a letter to the claimant how it had valued the land in Uganda.  The authority could find no evidence of any restriction on the transfer of the funds from the sale of land in Uganda to the UK.  In accordance with regulation 48 of the Housing Benefit Regulations and the equivalent council tax benefit provision, the land was valued at its purchase price, less the statutory 10% in respect of costs of sale, and a further 3% was deducted in respect of currency conversion charges.  The authority also confirmed that it was not taking into account the claimant’s husband’s business account (that ending 0060).  The letter concludes that the claimant’s capital exceeded the statutory threshold for the period 12 April 2010 to 30 August 2010.  Because of the way that the land was valued, the total capital was reduced from then on, and a month by month calculation of capital is set out in the pages following.  With effect from the week commencing 30 August 2010 the land purchase funds were reduced in accordance with the regulation 48 calculation set out in the authority’s letter and this brought the total capital to under £16,000,  and it remained below that limit for the rest of the claim.

 

21. The claimant’s husband responded to this by e‑mail challenging the amounts said to be recoverable by reference to invoice numbers, not the dates, the type of benefit or any of the normally recognised methods of identifying a decision.  This appeal was acknowledged on 26 May 2011 as an appeal “against invoices 7498055, 7508026, 7508961, 7526613, and 7526626”.

 

22. The appeal, was of course, against the amounts of the overpayment as calculated and set out in the local authority’s decisions in April, and their recoverability, not the “invoice numbers”, and it is most unfortunate that recovery notices were ever sent out in that form.  I would add they do not appear in the bundle before me in this form.  However, as this bundle  includes a copy of all the decisions made by the local authority, I am satisfied that the local authority did reach lawful and enforceable decisions about the amounts of benefit to be recovered.

 

23. The adjourned hearing resumed on 15 June 2011 when the judge recorded what I can only describe as the extremely confusing decision that the appeals in respect of housing benefit and council tax benefit were “allowed in part” because the decision of the local authority made on 26 November 2010 was revised. But the tribunal confirmed the revised assessment made by the respondent local authority on 14 April 2011.  In plain English, the claimant’s appeal had failed.  The local authority’s decision made on 26 November 2010 was replaced by its revised assessment on 14 April 2011.  Unfortunately, this was not understood by the claimant, whose husband began to protest as the local authority started recovery procedures.

 

24. A statement of reasons was requested.  This unfortunately set out the judge’s view that “the tribunal cannot go beyond 26 November 2010 which was the date of the decision appealed against”.  That decision was of course replaced by the later revised decision, and the claimant’s appeal did not lapse because it was obvious that she was still appealing against the overpayment decisions.  However, the statement of reasons does set out relevant evidence, starting with the claimant’s attempts to purchase land in Uganda since 1997.  Her husband’s evidence to the tribunal was that neither he nor his wife considered disclosure of their capital as “relevant”.  Despite their straightened circumstances they continued to save, and on 27 August 2010 withdrew £13,000 from their savings to purchase the land in Uganda.  Their ultimate aim was to build a house and a school on the land.  The judge found this was a private arrangement and not done through a charitable trust, though their intention was said  to be that at some future point, when the project was carried through to fruition, they would  register the project as a charity.  The judge correctly recited that except as specifically disregarded by the schedules to the relevant regulations, capital a claimant possessed in a country outside the United Kingdom was to be calculated (a) in a case where there was no prohibition in that country against the transfer to the United Kingdom at an amount equal to its current market value in that country, and (b) in a case where there was such a prohibition, the price at which it would be realised if sold in the United Kingdom to a willing purchaser.  In both cases, this would be less sale expenses of 10% and the amount of any encumbrances, of which none was  disclosed in this case.  Though the tribunal considered that it did not have jurisdiction to consider the situation from 26 November 2010 onwards, it had evidence on which to make relevant findings and accepted that the local authority’s net valuation of the capital represented by the land in Uganda was fair.  The tribunal was wrong to think that it was limited to the date of the first decision. It was replaced by the April 2011 decision, but the tribunal was entirely correct in its finding that the value of the land in Uganda could not be disregarded.

 

25. The unfortunate ambiguity in the decision notice, already mentioned, led to the claimant’s solicitors asking the local authority to review the case because ‘her appeal had been allowed in part’.  The solicitors were not happy to accept the local authority’s view that the appeal had in fact been disallowed and so, without any setting aside action being taken, the appeal continued. This was an error of law. Unless set aside or appealed, the tribunal’s decision was final: section 17 Social Security Act 1998. The local authority would, of course, have been able to supersede the tribunal’s decision on the basis of new evidence which had not been before the tribunal. But there was no such evidence, and the local authority did not issue a new decision superseding the first tribunal’s decision. However, what was treated as a new appeal continued before the same judge.  The claimant asked the new tribunal (the second tribunal) to take into account the cost of supporting her late brother’s children at boarding school, and also funeral expenses for another brother.  These, of course, are not expenses which could be taken into account either to reduce the claimant’s income or her capital. However, evidence of regular transfers by way of post office money grams were included, as well as the written submissions made by the claimant’s counsel.  These submissions described the current proceedings as a ‘second appeal’, though it is clear that what was before the tribunal was exactly what was before the first tribunal, had it correctly instructed itself as to its jurisdiction, which would continue up to the date of the last of the local authority’s amended decisions.  With justification counsel criticised the impenetrability of the local authority’s presentation, but with less justification asked for the claimant’s appeal to be allowed “on a summary basis”.  The tribunal does not have the power to allow an appeal on a summary basis.  The First‑tier Tribunal has the power to strike out a claimant’s appeal where the tribunal considers there is no reasonable prospect of the appellant’s case, or part of it, succeeding:  rule 8(3)(c) Tribunal Procedure (First‑tier Tribunal) (SEC) Rules 2008.  However, there is no equivalent provision which enables the tribunal to allow an appeal “on a summary basis”, because it is unimpressed with the first‑tier authority’s decision.  As a creature of statute, the tribunal has only those powers granted to it by legislation.  Rule 8(7) states that the rule applies to a respondent as it applies to the appellant except that –

 

(a) reference to the striking out of the proceedings is to be read as a reference to the barring of the respondent from taking further part in the proceedings …

 

This is a course which can be taken where a respondent has repeatedly failed to respond to directions, but it would be an extraordinary use of the power in a case such as this, where the evidence of non‑disclosure and consequent overpayment is self‑evident.

 

26. The question of supersession is also raised in this submission.  It is not in fact a technical condition of recovery of overpaid housing benefit or council tax benefit that a supersession has been undertaken.  Schedule 7, paragraph 4 of the Child Support, Pensions and Social Security Act 2000 does make provision for decisions superseding earlier decisions, but this simply provides that an authority may supersede a decision either on an application made for the purpose by a person affected by the decision or on its own initiative.  The power to recover overpayments comes from section 75 of the Social Security Administration Act 1992. Given the reliance placed on the authority’s supposed failure to supersede, it might be as well to recite the relevant parts of this provision here:

 

“Overpayments of housing benefit

 

75. - (1) Except where regulations otherwise provide, any amount of housing benefit determined in accordance with regulations to have been paid in excess of entitlement may be recovered either by the Secretary of State or by the authority which paid the benefit. 

 

(2) Regulations may require such an authority to recover such an amount in such circumstances as may be prescribed …”

 

Regulations go on to provide that without prejudice to any other method of recovery, any amount recoverable under this section may be recovered by deduction from prescribed benefits.  Section 76 of the Act goes on, in identical terms, to make equivalent provision for recovery of excess council tax benefit, that is where any amount of council tax benefit allowed in excess of that to which a person was entitled, i.e. “ excess benefit”. 

 

27. A decision is “superseded” when it replaces an earlier decision.  It does not need to be described as such in formal technical terms, and to the extent that it is necessary to identify the decision which is being replaced, the local authority has done that.  I accept that its submissions have not always been clear, but what always has been clear is why it argues that the claimant has been overpaid and each of its successive decisions, as it has taken into account the drip-feed of evidence from the claimant both as to her original circumstances, which she failed to disclose, and to changes in those circumstances, is with patience intelligible.  Accordingly, there is nothing in counsel’s point concerning a failure to supersede, and the tribunal judge was right to indicate that the formal requirements are not explicit in the case of housing benefit and council tax benefit as they are in respect of those benefits covered by section 71 of the Administration Act.

 

28. The tribunal judge on 15 December 2011 adjourned to enable the respondent to reply to this submission, which had been sent to the tribunal (and presumably the respondent authority) on 12 December 2011, and it is a copy of that submission faxed on 13 December 2011 which appears in the tribunal bundle.

 

29. The local authority responded by setting out each of the overpayments in the form directed by the tribunal, largely by way of handwritten calculations, but summarised in a letter to the claimant dated 19 January 2012.  Unfortunately, it then went on to duplicate all of the earlier evidence, which has added greatly to the volume of papers in this case.

 

30. When the appeal finally came before the same tribunal judge on 8 March 2012 he confirmed  the  local authority’s most recent calculations. The tribunal explicitly rejected the argument that the respondent was precluded from recovery on the basis that its decisions were procedurally invalid, explicitly found that the discretionary housing payment was not subject to the tribunal’s jurisdiction, and rejected the argument that the land in Uganda should not be taken into account.  Paragraph 7 of the statement deals in detail with the land in Uganda.  The proposal to build a house and a school on the land were found to be a private arrangement and not carried out through a charitable trust.  The intention to register the project as a charity in the future could not affect its present status, and the tribunal found that the claimant would own the school when it was built and her sister would be employed there as a teacher, and the claimant herself (it appears) would be the head teacher of the school.  Arguments that the property was worth less than had been paid for it in September 2010 were rejected, and rightly so.  The claimant did not adduce evidence that there was any provision of foreign law which supported her argument.  Even though the tribunal rejected the contention that the land was worth less because she was a woman,  appearing not to have adverted to the fact that the land in fact was held jointly by the claimant and her husband, it correctly stated it was not addressed on the foreign law point by way of the expert evidence which would have been required.  Given the claimant’s admission that any willing purchaser would have to pay what she paid for the land, the argument hardly seemed worth pursuing.  The same is true of the future intention to place the land in a charitable trust.  The tribunal judge noted that the future purpose would not be exclusively charitable, because the claimant wanted to build a house for her own occupation. The tribunal correctly focused on the material point, which was that creating a charity was an intention for the future, not the present status of the claimant’s project.  There was no provision under Schedule 6 of the Housing Benefit Regulations (capital to be disregarded) or Schedule 5 (capital to be disregarded) of the Council Tax Benefit Regulations which would have enabled either the tribunal, or the respondent local authority, to leave the capital value of the land out of account.  The tribunal’s exposition of the relevant law applicable is correct, as was its rejection of counsel’s argument that the land in Uganda was held in a trust.  As the tribunal judge correctly states, there was no evidence that the claimant had entered into an agreement with anyone for the use of the land, still less of her having a “stated purpose”:  as the judge correctly remarked, “her purpose remains quite vague and in the realms of aspiration only at present”.  Nor, I note, was evidence presented of a transfer to a trust charitable or otherwise.

 

31. Notwithstanding the jurisdictional defects of the second tribunal’s decision having been given without explicitly setting aside the decision of the 2011 tribunal, the tribunal reached the only decision which was open to it on this evidence, and this has made the further appeal to the Upper Tribunal futile.  Neither party requested an oral hearing of the appeal, and had they done so, it would have been a waste of public funds to grant it.  Though in the application for permission to appeal to the Upper Tribunal, counsel for the claimant argued that the tribunal judge misdirected himself in the law in holding that the requirement under section 75, Social Security Administration Act that previous operative decisions need to be revised or superseded is less strict than for housing benefit or council tax benefit compared with the requirement in section 71 of the same Act, I can only respectfully suggest that it might be some time since counsel has re read the provisions of section 75 because it does get away from the technical requirement to identify the decision being superseded. Nor do the relevant schedules in the regulations (Schedule 9, part 7 for housing benefit and Schedule 9 part 7 of the Council Tax Benefit Regulations) use the word ‘supersession’.  That does not mean the decisions in question have not been superseded; clearly they have. Whenever one decision replaces another, the first decision has been superseded. But what it does is get away from the formulaic ritual which has surrounded “supersession” for the purpose of section 71 Administration Act. Despite all the paper that has been expended on this appeal, as well as all the expensive publically funded time, the matter is a simple one of a claimant who failed to disclose her capital when claiming means‑tested benefits from the local authority.  No one disputes that she did not disclose her capital, and that being the case, the only argument can be by how much she had been overpaid, given that none of that capital could be disregarded. 

 

32. In this case there was no choice open to the local authority about the person from whom recovery should be made.  The housing benefit was paid to the claimant, and not to the landlord.  She was therefore the only available person from whom to make recovery.

 

 

 

 

 

 

 

 

 

 

 

 

 

33. Like the tribunal judge in paragraph 11 of the statement of reasons, I accept there are some discrepancies in the calculations, but these are minor. Like him, I find that these are not to the claimant’s disadvantage, and because of this it would be disproportionate to require further calculations from the authority.

 

(Signed on the Original)

A Ramsay

Judge of the Upper Tribunal

Date: 25 October 2012