DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.

 

The decision of the Bournemouth First-tier Tribunal dated 22 February 2013 under file reference SC238/13/00002 involves an error on a point of law and is set aside.

 

The decision that the First-tier Tribunal should have made is as follows:

 

The Appellant’s appeal against the Local Authority’s decision of 27 December 2012 is allowed.

 

The overpayment of housing benefit of £734.43 (for the period 23.04.2012 to    11.06.2012) and the excess payment of council tax benefit of £17.60 (for the period 23.04.2012 to 18.06.2012) are not recoverable from the Appellant.

 

This is because the overpayment of housing benefit was caused by official error on the part of the Local Authority in the form of an omission. In addition, the Appellant neither caused nor materially contributed to that omission; nor could she reasonably have been expected to realise that it was an overpayment. The same applies to the excess payment of council tax benefit.

 

This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

 

 

REASONS FOR DECISION

 

The questions arising on this appeal to the Upper Tribunal

1.         This appeal to the Upper Tribunal essentially raises two questions, one of law and one of fact.

 

2.         First, as a matter of law, can a local authority’s failure to ask all claimants a particular question on its standard housing benefit claim form amount to an “official error”, such that any resulting overpayment of benefit may not be recoverable from a claimant?  The answer to that question is yes. I deal with the general principles involved at paragraphs 19-42 below.

 

3.         Second, and if so, in the circumstances of this case was the failure to ask a question on the standard claim form about a child’s usual address an “official error”? The answer to that question is again yes. I deal with the application of the general principles to the circumstances of this appeal at paragraphs 43-57 below.

 

The facts underlying the present appeal

4.         The basic facts of this case are not in dispute. The Appellant, the claimant, is separated from her ex-husband. They have shared care of their son Jack. At the time in question Jack lived with his father for a greater proportion of the week than with his mother. However, Jack was included on his mother’s housing benefit claim for a period between April and June 2012, leading to a housing benefit overpayment of more than £700 (and a much smaller council tax benefit excess payment). The background to how this happened was as follows.

 

5.         In July 2009 Bournemouth County Court issued a residence order by consent under the Children Act 1989. The parents agreed a division of time for Jack to live with each of them on the basis that Jack’s father “agreed to transfer” child benefit and child tax credit to the Appellant (i.e. presumably that he would not contest her claim to those benefits). The agreed division of time meant that Jack lived with his father for just over two-thirds of the week and with his mother for the other third.

 

6.         In September 2010 the Appellant made a claim for housing benefit and council tax benefit. Part 2 of that claim form was entitled “About children” and started with the local authority’s statement that “we need to know about any children in your household”, subject to certain age limits, followed by the question “Are there any children in your household who fit the description above?” The actual form the Appellant completed is no longer available (although a blank version of the relevant page is at p.19 of the file), but it is not in dispute that she included Jack’s details on her claim, answering all the questions she was asked. She was accordingly paid housing benefit on the basis that Jack was a child member of her household.

 

7.         In April 2012 the local authority became aware of the existence of the 2009 residence order. The council asked whether Jack’s current residence arrangements were the same as under the consent order. The Appellant advised that there had been some minor modifications to the arrangements, so Jack did not live with his father for 68% of the time, as previously, but he still resided with his father for the majority of the time; there was, accordingly, no 50:50 split on shared care.

 

8.         In June 2012 the local authority made a decision that Jack should not have been included on the Appellant’s housing benefit claim. Its explanation was that Jack normally lived with his father, whose address should therefore be Jack’s “main residence”. In September 2012 a First-tier Tribunal dismissed the Appellant’s appeal against that decision on entitlement.

 

9.         In December 2012 the local authority issued an overpayment decision, ruling that the Appellant was not entitled to housing benefit for the period from 23 April 2012 through to 11 June 2012 (presumably the date from which payment had been suspended and then terminated), creating a recoverable overpayment of £734.43. There was a parallel recoverable excess payment of council tax benefit, calculated at £17.60 net, and running a week later to 18 June 2012.

 

10.       On the file before me, it does not appear that the local authority made any decision as to the Appellant’s entitlement to housing benefit for the earlier period from September 2010 until April 2012, or any potential liability for any overpayment that may have arisen for that earlier period. However, it seems to me that any attempt to recover overpaid housing benefit for that earlier period will face exactly the same problems as I identify below for the period under appeal now.

 

The decision of the First-tier Tribunal

11.       On 22 February 2013 a different First-tier Tribunal heard the Appellant’s appeal against the overpayment decision. The tribunal confirmed the local authority’s decision and dismissed the appeal. On the decision notice, the tribunal judge recorded “on the facts before me, I cannot see that there has been a Local Authority error in this case”.

 

12.       The tribunal subsequently issued a statement of reasons, setting out its explanation in the following terms:

 

“10. Effectively, therefore, the only ground of appeal that the Appellant and her representatives have in this case is to show that the claim form was and is not fit for purpose in cases such as these, where there is a shared residence order. By regulation 100 of the Housing Benefit Regulations 2006 and its council tax equivalent, for an overpayment to be deemed non-recoverable, then there must be either an act or omission on the part of the local authority resulting in official error. In this respect, I agree with the Local Authority that there is no evidence to suggest that they have made an error, As I have indicated, I am satisfied that the local authority were not aware of the existence of the residence order until June 2012 and although the [claim] form as printed on page 19 does not directly address the question of shared residence, had the Appellant produced a copy of the order, this would have enabled the local authority to make a decision as to who did indeed have primary responsibility for Jack.

 

11. A local authority is under no duty to demand a particular piece of information on its standard claim form and there is no official error if it does not do so. In this case, the onus was on the Appellant to produce a copy of the shared residence order and this is not a case where a failure to amend forms in accordance with amending legislation would amount to official error. It dealt with the facts of the case rather than any amending legislation or changes to housing benefit entitlement. In essence, the local authority were not required to re-write their claim forms in cases such as this where the impact is only a small minority of claimants.”

 

The parties’ submissions to the Upper Tribunal

13.       Christchurch CAB has been acting for the Appellant throughout. Its arguments are essentially the same as put before the tribunal below, with some further refinement. The CAB argues that it is the local authority’s duty to obtain the necessary information in order to assess a claim correctly (Housing Benefit Regulations 2006, regulation 86(1)). Accordingly, “it would be unreasonable in this case to lay responsibility for the provision of information not requested with the client.” Furthermore, the CAB argues that the term “household” is ambiguous. The CAB also points out that a neighbouring local authority, New Forest District Council (NFDC), issues guidance notes with its housing benefit claim forms that include the advice “Sometimes a child or young person spends time in more than one household. In this case, please contact us for more information”. The CAB did not dispute that the Appellant in the present case had been overpaid housing benefit. Its argument, rather, was that the local authority’s omission to request relevant information was an “official error”. Indeed, the CAB expressly stated that if the Appellant had “been given instructions of this type [as given by NFDC] and not followed them we would not be appealing against the decision to recover the overpayment.”

 

14.       The local authority argues that the tribunal came to the correct decision and for the correct reasons. Its submissions are also essentially the same as those that were deployed (and succeeded) before the tribunal below, with some elaboration. The local authority point out that the Appellant declared on her claim form that Jack was a member of her household but did not mention the existence of the shared residence order. The council also argue that it did not make any official error “because it could not have asked the appellant for the residence order as it did not know of its existence”. It further submits that the standard claim form in use by the local authority “is of the same design” as the national HCTB1 form, as recommended by the Department for Work and Pensions (DWP), a copy of which it has helpfully provided.

 

The Upper Tribunal’s analysis

Was Jack a member of the Appellant’s family on her housing benefit claim?

15.       The answer to that question, in short, is it all depends. The legal definition of “family” for means-tested benefits such as housing benefit imposes two requirements. The first is that Jack had to be a member of the Appellant’s household. The second is that the Appellant had to be responsible for him (Social Security Contributions and Benefits Act 1991, section 137(1)). Neither of those conditions is as straightforward as it sounds.

 

16.       As to the latter, “a person shall be treated as responsible for a child or young person who is normally living with him” (regulation 20(1)). “Normally living with” means spending more time with that parent (or other carer) than with the other adult (see the unreported Social Security Commissioner’s decision CFC/1537/1995 at paragraph 11, per Mr Commissioner (now Judge) Rowland). Furthermore, for this purpose only one person can be treated as responsible for a child in any given benefit week (regulation 20(3)). It is only if the child spends exactly equal amounts of time in each household that receipt of child benefit is used to determine responsibility (regulation 20(2)). On that basis, the local authority and both tribunals were right to conclude that in law only Jack’s father was “responsible” or him at the material time (in the narrow context of the Appellant’s housing benefit claim, rather than the wider question of parental responsibility).

 

17.       As to the former, where a parent (or other carer) is treated as responsible for a child, then the default position is that the parent and child “shall be treated as members of the same household notwithstanding that any of them is temporarily living away from the other members of his family” (regulation 21(1)). This would not have assisted the Appellant in the present case, as at the relevant time she was not treated as responsible for Jack under the preceding test in regulation 20.

 

18.       It follows that by law Jack was not a member of the Appellant’s family for housing benefit purposes at the time in question. She was not entitled to the family premium and the child personal allowance for Jack, nor to the two-bedroom local housing allowance rate. As a result she was overpaid housing benefit for the period covered by the appeal. The question then is whether the local authority was entitled to recover that overpayment.

 

Overpayments and official error

The legislation

19.       The starting point is that all overpayments of housing benefit are recoverable (Housing Benefit Regulations 2006 (SI 2006/213; “the 2006 Regulations”), regulation 100(1)).

 

20.       This default position is subject to the exception in regulation 100(2) (as amended), which

“applies to 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.”

 

21.       Furthermore, an “overpayment which arose in consequence of an official error” within regulation 100(2) means “an overpayment caused by a mistake made whether in the form of an act or omission” by one of a number of official agencies, including the local authority (regulation 100(3)).

 

The case law in the courts

22.       So what is meant by the expression “a mistake made whether in the form of an act or omission”? This requires an analysis of a limited amount of case law, not all of which is readily accessible to advisers, let alone to any litigants in person. The (unofficial) commentary to the legislation in CPAG’s Housing Benefit and Council Tax Benefit Legislation 2013/2014 (26th edition; “Findlay”), relying on the authority of R v Liverpool City Council, ex p Griffiths [1990] 22 HLR 312, advises as follows (p.532):

 

“No fault is required for the act pr omission to amount to a ‘mistake’. All that is necessary is that, with the benefit of hindsight, something is done which should not have been done or something is not done which should have been.”

 

23.       The authors continue by way of a qualification:

 

“However, if there is no duty on the authority or relevant official to take a step, and it is not reasonable to expect them to do it by way of investigating the claim, there is no ‘omission’ if it is not done. Thus the authority is under no duty to demand a particular piece of information on its standard claim form and there is no official error if it does not do so: R v Islington London Borough Council Housing Benefit Review Board ex p de Grey [1992] unreported 11 February QBD.”

 

24.       Although the tribunal in the present case did not cite the authority of ex p de Grey, in its reasons, it was plainly relying on that statement of principle in dismissing the Appellant’s appeal. The claimant in ex p de Grey was a tenant under a co-ownership scheme, but payments under such a scheme are not eligible for assistance under the housing benefit legislation (see now regulation 12(2)(b) of the 2006 Regulations). The claimant in that case had completed the council’s housing benefit claim form. There was no suggestion that any of his answers were untrue. However, the form did not ask him if he was a co-ownership tenant; nor did he volunteer that information. An overpayment of housing benefit of more than £9,000 arose as a result.

 

25.       Kennedy J refused the claimant permission to apply for judicial review against the review board’s decision that the overpayment was not caused by an official error. In doing so, Kennedy J ruled as follows:

 

“As it turned out, the local authority did not have a necessary piece of information in order to decide whether or not to make a payment because an appropriate question which would have elicited that information did not appear on the form at the time. That does not mean that when payment was made there was an overpayment caused by a mistake or act or omission, and accordingly, as it seems to me, the review board were fully entitled to arrive at the conclusion at which they did arrive. Mr De Mello [for the claimant] accepts that if his argument is right whenever there is an overpayment due to lack of relevant information there has been an official error; with that I do not agree.”

 

26.       That ruling in ex p de Grey has subsequently been described as having “limited persuasive force” (see Richards J in R (on the application of Sier) v Housing Benefit Review Board of Cambridge City Council [2001] EWHC 160 at paragraph [41]). With respect, I agree that we should be wary of placing too much weight on ex p de Grey. I say that for four reasons. First, it was a simple ruling on an application for permission (and at that time necessarily an application for permission to apply for judicial review); it was not a fully reasoned decision on a substantive appeal (or judicial review). Second, the Divisional Court’s judgment was given ex tempore (i.e. immediately and without being reserved). Third, the Court’s observations on the scope of official error were not even necessary for the decision to refuse permission to apply for judicial review. Kennedy J observed that the review board had a second reason for reaching the decision it did, which was that on the facts the claimant could reasonably have been expected to know that he was not eligible for housing benefit. This was because he was due to receive a payment based on the value of the property when he ceased to be a member of the co-ownership scheme. On that basis alone the application was “unarguable”. Fourth, and finally, the case law has moved on in terms of the respective duties of official agencies and claimants in the context of resolving claims for benefit – see especially Kerr v Department for Social Development [2004] UKHL 23, a decision to which I return below.

 

27.     In R (on the application of Sier) v Housing Benefit Review Board of Cambridge City Council itself the claimant had simultaneously rented properties in both London (which became his main residence) and in Cambridge. He claimed housing benefit in both locations. The local authority (and review board) in Cambridge decided that he had been overpaid £6,600 in housing benefit. A subsidiary part of the claimant’s case, on his application for judicial review before the Divisional Court, was that the review board had wrongly rejected his contention that the local authority had made an official error in the design of the claim form. His argument was that the claim form did not specifically ask where the claimant's normal home was or whether he was receiving housing benefit elsewhere. It was submitted that the failure to request that information was an official error, which had in turn led to the claimant not notifying the local authority in Cambridge of the change to his normal home when he acquired the tenancy in London.

 

28.       At first instance Richards J dealt with this submission as follows (at paragraph [40]):

 

“The contents of the claim form are not the subject of statutory prescription. In this case the questions asked on the form sought a considerable amount of information about the claimant's “tenancy”. It presupposed that the claimant had only one home which, as it seems to me, is likely to be the case for the overwhelming majority of claimants. If the claimant had had two homes at the time of submitting his claim the terms of the form would have prompted him to inquire about the position...”

 

29.       Richards J concluded with the following observation (at paragraph [41]):

 

“the omission of questions about the claimant's normal home, a potentially complex topic, as appears in the statutory provisions in s.130 of the 1992 Act and reg 5 of the Housing Benefit (General) Regulations, does not seem to me to have amounted to an official error within the meaning of reg 99”.

 

30.       Furthermore, on any analysis the merits of the case were clearly not with the claimant in that case; the acquisition of a rented main home in London was plainly a change in the claimant’s circumstances, and “the terms of the declaration in the form were sufficient to have prompted the claimant to tell the local authority immediately”. Be that as it may, it is reasonably clear that the rarity of claimants having two homes, combined with the complexity of what is now regulation 7 (“Circumstances in which a person is or is not to be treated as occupying a dwelling as his home”), meant that it could be said to be reasonable for a local authority not to ask any questions on its claim form directed to that issue. The point about the design of the claim form was not pursued further on the claimant’s unsuccessful appeal to the Court of Appeal ([2001] EWCA Civ 1523), where the argument about possible “official error” focussed on the breakdown of communications between the DWP’s income support office and the local authority’s housing benefit office.

 

The Social Security Commissioners’ case law

31.       The implications of the design of local authority housing benefit claim forms for the application of the concept of official error in the context of the recoverability of housing benefit overpayments has also been considered in two previous unreported decisions of the Social Security Commissioners (the forerunners of the Upper Tribunal): CH/3679/2002 (Miss Commissioner Fellner) and CH/4428/2006 (Mr Commissioner Powell).

 

32.       In CH/3679/2002 the claimant’s landlord was his former wife, with the result that he fell foul of either regulation 7(1)(d) or 7(1)(l) of the Housing Benefit (General) Regulations 1987 (SI 1987/1973), but only as they were amended with effect from January 25, 1999 (now regulation 9(1)(d) or 9(1)(l) of the 2006 Regulations, dealing with what are often generically described as “contrived tenancies”). The claimant had accurately completed claim forms in November 1999 and October 2000, neither of which asked him about the relationship of anyone else (e.g. their child) in the house to the landlord. Ms Commissioner Fellner, when giving permission to appeal, had expressed the view that “continuing to use outdated forms which did not reflect the 25 1 99 amendment to the regulations could in this case constitute an official error” (at paragraph [2]). The local authority in that case conceded that there had been such an official error, and so the point did not need to be formally decided. The tribunal’s decision was set aside and the case remitted to a new tribunal for rehearing on a separate procedural point.

 

33.       Official error was not conceded by the local authority in CH/4428/2006 in somewhat similar circumstances relating to what was then regulation 7(1)(d). The claimant’s partner was both her landlord and the father of two of her children. Before the January 1999 amendments, this had no bearing on her right to housing benefit. After those changes, she was excluded from entitlement to housing benefit. The claimant completed claim forms in September 2001 and September 2002 but it was not until September 2003 that the claim form included a specific question about the landlord’s relationship to any children involved (a question that the claimant avoided answering).

 

34.       On the further appeal to the Commissioner against the decision that the consequential overpayment of housing benefit was recoverable, the claimant’s representative put the case on official error on two bases. The first ground related to the interpretation of certain information which was disclosed on the claim forms, and is not relevant here. The second ground concerned the design of the claim form itself. The claimant’s representative, relying on CH/3679/2002, had argued that the council’s failure to alter its claim forms immediately, to include the questions which belatedly appeared in the 2003 version, was itself an error of law. Mr Commissioner Powell regarded the earlier decision as “of no assistance to me because Miss Commissioner Fellner did not decide the point. Instead, she accepted a concession” (at paragraph [32]). The Commissioner also noted that de Grey and Sier pointed the other way. However, Mr Commissioner Powell concluded as follows (emphasis added):

 

         “33. I proceed on the basis that a failure to amend the forms to accord with amending legislation may, in certain circumstances, amount to official error but will not do so in every case. If this were not so local authorities would have impossible burdens placed upon them. They would, for example, have to withdraw all existing forms in advance of the amending legislation coming into force. This would be particularly difficult in cases where some measure of transitional relief applied. Such efforts would, of course, be appropriate where an undoubted major change was affected. It would not be appropriate where the changes were not so major or were unlikely to affect many people. Were this not so, it would be open to appellants to trawl through a council’s forms to find some omission or to argue that, had a question been posed differently, the answer given would have been more significant. That is not something which I would wish to encourage. It would also mean that these forms would become longer and more complicated and might either put some people off applying for benefit or provide even greater scope for error on the part of those seeking benefit. Simplicity is important.”

 

35.       It seems to me that the italicised passage in the extract above in terms states the general principle involved, which is supported by de Grey, Sier and CH/3679/2002. I agree with that statement of principle. It is entirely consistent with the definition of “official error” in regulation 100, which extends to omissions as well as acts and is not confined to e.g. a particular act or omission of an individual member of staff, but is sufficiently broad to encompass more systematic failings such as the design of standard claim forms (subject always, of course, also to issues about causation). The rest of Mr Commissioner Powell’s explanation in paragraph [33] provides a sensible policy rationale for that approach, and understandably sounds a note of caution against imposing too high a burden on local authorities. This in turn was echoed by Upper Tribunal Judge Howell QC’s approach in SN v London Borough of Hounslow (HB) [2010] AACR 27, emphasising that “a claimant who has got benefit by not disclosing relevant facts is not able to turn the case into one of ‘overpayment caused by official error’ by saying that if only officialdom had been more vigilant he would have been spotted” (at paragraph [19]). Furthermore, as Judge Howell observed, the decision in Sier (in the Court of Appeal) demonstrated that “mere lack of contribution to an administrative step that never took place was not of course an answer to recovery of an overpayment whose actual cause had been the claimant’s own failings, there his failure in breach of duty to report a change of circumstances” (at paragraph [21]).

 

36.       Mr Commissioner Powell then applied that statement of general principle to the particular facts in CH/4428/2006 in the following terms:

 

“34. Contrary to the arguments of the Council, I consider that the new regulation 7(1)(d) did make a significant difference in some cases and was not just clarification or tidying up. In the case of the claimant it meant that she was no longer entitled to housing benefit. Nevertheless, the number of cases where the new regulation, on its own, caused a loss of benefit must have been small. In this case I am not prepared to say that the failure to amend the forms to ask the question about relationships amounted to official error. I add that I have tried to see if there is a date on the 2003 form. It is difficult to read but it appears to be described as having been issued in April 2003 and that it is the second version. This appears to be confirmed by the Council in its submissions at page 314.”

 

37.       With respect, the Commissioner’s reasoning is a little condensed (see also the discussion in Findlay at p.532). However, it does appear that the question of whether a failure to ask a particular question on a standard claim form amounts to an “official error” is very much a question of fact and degree. Mr Commissioner Powell clearly contemplated that local authorities should have some leeway in terms of the timing of making changes to claim forms, even where changes were deemed appropriate. It may also well be relevant that in CH/4428/2006 the claimant “was not entirely honest in her dealings with the Council” (at paragraph [20]), in particular by failing to disclose the presence of her partner at her address, implying that the omission to ask a specific question on the form was not strictly causative. Putting such very fact-specific issues aside, it is plain that the number of cases likely to be affected by the ‘missing question’ is a very important consideration. Thus co-ownership tenants (de Grey), two-home claimants (Sier) and claimants in a relationship with their landlord (CH/4428/2006) are all unusual sets of circumstances which may not mandate a complete redesign of a council’s claim form. CH/3679/2002, although based on a concession, may simply emphasise that the last category may amount to official error where there is no suggestion that the claimant was at fault in any way.

 

The wider considerations

38.       At one level the answer ‘it all depends’ to the question ‘Can a failure to ask a particular question on a claim form amount to official error?’ is less than helpful. However, apart from the type of case affected and so the number of such cases likely to be involved, there are other benchmarks for the application of a test of reasonableness in this context – one is to be found in statute, and one in the wider case law.

 

39.       The statutory provision is regulation 86(1) of the 2006 Regulations. As the Appellant’s representative points out, this requires claimants to “furnish such certificates, documents, information and evidence in connection with the claim or the award ... as may reasonably be required by the relevant authority in order to determine that person’s entitlement to, or continuing entitlement to, housing benefit” (emphasis added). This shows that the onus is on the local authority to ask the right questions on an initial claim for benefit, not least as it is the authority’s responsibility to determine claims (regulation 89(1)). Claimants cannot be assumed to have either an encyclopaedic knowledge of the rules of entitlement for housing benefit or a paranormal ability to read the minds of council staff.

 

40.       This starting point is supported by the authority of the decision of the House of Lords in Kerr v Department for Social Development. Omitting the fourth principle, which has no application here, Lord Hope of Craighead held as follows (at paragraph [16]):

 

“But there some basic principles which made be used to guide the decision where the information falls short of what is needed for a clear decision to be made one way or the other:

(1)  Facts which may reasonably be supposed to be within the claimant's own knowledge are for the claimant to supply at each stage in the inquiry.

(2) But the claimant must be given a reasonable opportunity to supply them. Knowledge as to the information that is needed to deal with his claim lies with the department, not with him.

(3) So it is for the department to ask the relevant questions. The claimant is not to be faulted if the relevant questions to show whether or not the claim is excluded by the Regulations were not asked.”

 

41.       The same point was put, perhaps rather more pithily, by Baroness Hale of Richmond in her opinion: “the system places the burden upon the department of asking the right questions and upon the claimant of answering them as best he can” (at paragraph [58]). Thus the benefits adjudication system “is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information” (at paragraph [62]).

 

42.       In my assessment, any decision on whether a failure to ask a specific question on a claim form amounts to official error must bear those principles in mind, as well as the more fact-specific matters exemplified in the “official error” case law to date. After this rather lengthy digression, these principles and factors must be considered on the facts of the instant case.

 

The application of these principles to the present appeal

43.       In order to assess a housing benefit claim properly, a local authority needs to know whether any child involved is (1) a member of the claimant’s household; and (2) a child for whom the claimant is responsible (see paragraph 15 above). The issue of whether the Appellant was responsible for Jack was to be determined by whether he was “normally living” with her (see regulation 20(1)). In the present case, the local authority’s standard claim form was deficient. It failed to establish whether or not Jack normally lived with his mother. Asking whether Jack was “in her household” did not of itself answer that question. The claim form asked a series of other potentially relevant questions about Jack (including whether he was registered blind, which could have a bearing on the rate of premiums to be applied, and who got child benefit for him, which would be used in cases of equal shared care as a ‘tie-breaker’ under regulation 20(2)(a)). However, it omitted to ask the crucial question, which was whether or not Jack also lived at any other address. The local authority advances three reasons as to why it contends this omission did not involve any official error on its part.

 

44.       First, the local authority argues that its standard claim form adopted the same design as the DWP national ‘model claim form’ HCTB1. This is simply wrong. Part 2 of the HCTB1 form asks a range of questions about children living in the claimant’s household which certainly are replicated on this local authority’s form (e.g. their gender, their relationship to the claimant and their partner, who gets child benefit for them, etc.). However, the HCTB1 form includes the following important question – “usual address, if different from yours” – and provides several lines for any such other usual address for the child to be inserted. For whatever reason – perhaps it was considered unnecessary, perhaps out of a desire to save space – that question was not included on this local authority’s form. To be fair, that question is also omitted from the NFDC claim form. However, the neighbouring authority has the important advice in the guidance notes mentioned above (at paragraph 13), drawing a prospective claimant’s attention to the importance of this issue.

 

45.       Second, the local authority seems to contend that the overpayment was the Appellant’s fault as she had declared that Jack was part of her household. As a matter of plain English, Jack was part of her household, albeit for part only of the week. The Appellant could not be expected to know of either the existence of, or the significance of, the rules set out in regulation 20(1) and 20(3). Rather, given regulation 86(1) and the principles expounded in Kerr, the onus was on the council to ask the relevant questions – including the particular question on the HCTB1 form about any child’s usual address which it had omitted.

 

46.       Third, the local authority argues that it cannot be expected to include a question on its claim form asking about the existence of shared residence orders for any children involved. I agree. But that is to look at the issue in the wrong way. The real question is not whether or not there happened to be a shared residence order. There is plenty of authority to the effect that, where a child’s residency is concerned, what matters is what happens in practice, not in the theory of court orders (see e.g. SB v HMRC (TC) [2013] UKUT 24 (AAC)). In the present case the local authority’s failure was to ask whether Jack also lived at another address, irrespective of what court orders may, or may not, have been in place.

 

47.       Looking at the matter in another way, this local authority’s standard claim form asked a specific question which was relevant to the relatively unusual situation in which there was exactly equal (i.e. 50:50, and not 51:49 or any other ratio) shared care (i.e. the question about receipt of child benefit). Yet it failed to ask any question at all that would have revealed whether there was any other degree of shared care. Again, however, just as the local authority did not have to ask the question “is this child subject to a shared care or other residence order?”, I do not say that the local authority should have asked “is this child subject to a shared care arrangement?” The question that the local authority should have asked, so as to be in a position to assess the Appellant’s entitlement to housing benefit properly, was simply what was the child’s “usual address, if different from yours.”

 

48.       So, was the local authority’s omission to ask a question on its standard claim form about the child’s usual address an “official error” for the purposes of regulation 100? In my view it clearly was. I have explained above why I am not persuaded by the local authority’s arguments. The tribunal judge was right in saying this was not a failure to amend the claim form to accord with amending legislation, as with CH/3679/2002 and CH/4428/2006. Rather, however, it was a failure to provide a claim form that was fit for purpose in terms of the fundamental principles of eligibility for housing benefit. The reasonableness, and indeed in these circumstances the necessity, of asking a question about whether the child lived at any other address is demonstrated by the HCTB1 national form. The earlier authorities of de Grey and Sier both concerned basic conditions of entitlement, as here. But both of those cases concerned relatively unusual if not rare factual circumstances.

 

49.       In this respect I have to differ with the assessment of the tribunal in this case, which was that “the local authority were not required to re-write their claim forms in cases such as this where the impact is only on a small minority of claimants”. That would have been a reasonable assessment in the 1970s or 1980s, when the conventional wisdom in the courts was to express concern about children’s welfare if shared care was even mooted. Accordingly, courts tended to regard shared residence of children after divorce or separation as only appropriate in quite exceptional cases. In the post-Children Act 1989 climate, shared care (with or without the stamp of a court order) has become increasingly familiar. The exceptional has become the commonplace. As a result, hoary old excuses at school for a pupil’s missing homework or missing PE kit (“I left it on the bus” or “The dog ate it”) have been supplanted by explanations such as “Sorry Miss, I’m at my Dad’s this week and it’s over at my Mum’s place”.

 

50.       My conclusion, accordingly, is that the failure by the local authority to ask a question about the child’s usual address was, in the circumstances of this case, an official error.

 

Considering, setting aside and re-making the tribunal’s decision

51.       The tribunal’s decision involves an error of law in the following respects. First, the tribunal overlooked both regulation 86(1) and Kerr in assuming, in effect, that the onus was on the Appellant to produce information which had not been requested by the local authority. Second, the tribunal’s bald statement that “a local authority is under no duty to demand a particular piece of information on its standard claim form and there is no official error if it does not do so” is too blanket a statement. True, it repeats the commentary in Findlay – but it omits any consideration of the preceding passage (see paragraph 23 above) namely “if there is no duty on the authority or relevant official to take a step, and it is not reasonable to expect them to do it by way of investigating the claim, there is no ‘omission’ if it is not done.” As Mr Commissioner Powell put it (see paragraph 34 above), “a failure to amend the forms to accord with amending legislation may, in certain circumstances, amount to official error but will not do so in every case.” Third, the tribunal, like the local authority, focussed its inquiry on the issue of whether a question should have been asked about the existence of a shared residence order, neglecting the underlying issue that the claim form should have addressed, namely with whom the child “normally lives”.

 

52.       I therefore set aside the tribunal’s decision. The facts of the matter are clear and there is no need to send the case back for re-hearing by a different tribunal. I therefore proceed to make the decision that the tribunal should have made.

 

53.       For the reasons set out in detail above, the local authority’s omission to ask a question directed to the child’s usual address was an official error within regulation 100(2) of the 2006 Regulations. However, this is not a complete ‘get out of jail free’ card for the Appellant. As well as showing the existence of an official error, the Appellant must also show (1) that she did not cause or materially contribute to that omission; and (2) she could not reasonably have been expected to realise that there was an overpayment.

 

54.       These points were not addressed by the tribunal, and understandably enough as the tribunal reached the (erroneous) conclusion that the appeal had not got past the first base of establishing official error. However, I can deal with them both briefly.

 

55.       As to (1), this is not a case where the Appellant was at fault in any way. She was asked to complete a claim form and she complied fully with that request. She answered the questions put to her accurately. She was not in any way responsible for the local authority’s failure to ask the crucial question about whether Jack also had another address where he lived, let alone a usual address. There was no change of circumstances which she failed to disclose.

 

56.       As to (2), I agree with the CAB representative that it is quite unrealistic to conclude that the Appellant should reasonably have been expected to realise that she was being overpaid. She understandably saw Jack as a member of her household and was renting a two-bedroom property which enabled her to comply with the terms of the consent order. There was nothing in the claim form to alert her to the fact that it would be relevant to her claim if Jack also lived elsewhere (and, unlike NFDC, this local authority provided no guidance notes for the assistance of claimants completing claim forms).

 

57.       It follows that the overpayment of housing benefit, which is acknowledged to have occurred, is not recoverable from the Appellant. The same applies to the excess payment of council tax benefit. I also draw attention to my comments about the earlier period (see paragraph 10 above).

 

Conclusion

58.       I conclude that the decision of the First-tier Tribunal involves an error of law for the reasons above. I therefore allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). There is no need for the case to be sent back for re-hearing by a new tribunal (section 12(2)(b)(i)). I re-make the decision in the terms set out at the head of these reasons (section 12 (2)(b)(ii)).

 

59.       I must also record my acknowledgement of the persistent but well-focussed and cogent arguments advanced on the Appellant’s behalf by her CAB representative. It seems fairly clear from the correspondence on file that the Appellant was (understandably enough) rather out of her depth in arguing her case with the local authority. Without the CAB’s expert advice and assistance, it is very likely that this Appellant would have been landed with an overpayment bill in excess of £700 which, on proper analysis, was not her liability.

 

 

 

 

Signed on the original                                  Nicholas Wikeley

on 02 May 2014                                             Judge of the Upper Tribunal