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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> South Kesteven District Council v GB (CTB) (Housing and council tax benefits : council tax benefit) [2014] UKUT 263 (AAC) (10 June 2014)
URL: http://www.bailii.org/uk/cases/UKUT/AAC/2014/263.html
Cite as: [2014] UKUT 263 (AAC)
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South Kesteven District Council v GB (CTB) (Housing and council tax benefits : council tax benefit) [2014] UKUT 263 (AAC) (10 June 2014)

    IN THE UPPER TRIBUNAL                                                            Case No.  CH/18/2014

    ADMINISTRATIVE APPEALS CHAMBER

     

    Before Judge Mark

     

    Decision:  The appeal is dismissed.

     

     

    REASONS FOR DECISION

     

    1. This case concerns an alleged overpayment of council tax benefit of £9.62.  It arises because the council has construed certain regulations to mean that although the claimant’s income was in fact £71 per week, he was to be treated for 5 days as being in receipt of an income of £142 per week.  The claimant, who was born in 1969, was diagnosed with a brain tumour in September 2012 and as a result obtained an award of contribution based ESA in place of his previous award of jobseeker’s allowance.  The award of jobseeker’s allowance ceased on 2 October 2012 and the award of ESA commenced on 3 October 2012.  The amounts awarded were the same.  The claimant’s income was unchanged, but the council decided that until the start of the following week it was obliged to treat the claimant as being in receipt of both benefits.  It reached this conclusion by relying on regulation 50 of the Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, ignoring the fact that the claimant was in his early 40’s and was nowhere near that age and that regulation 5 of those regulations spelled out, in case the title was not sufficiently clear, that those regulations only applied to persons who had attained that age.

     

    1. The result, even had it been legally correct, was patently unfair, and it would have been a simple matter for the council to decide that it would write the sum off and inform the claimant of this.  Instead, when the claimant appealed, it fought the appeal, and sent a presenting officer to the tribunal.  When it lost the appeal, rather than accept a patently fair result, it then appealed further to the Upper Tribunal on this technical point of law.  The cost to the council alone must have far exceeded the potentially lost, and undeserved, revenue of £9.62, and the cost to the tribunal service of dealing with these appeals must comfortably run into four figures.  It is a prime example of the way that lack of common sense can waste public funds.

     

    1. I note that at the hearing, according to the record of the proceedings, the presenting officer stated “We are just following regulations” and “We will consider discretionary payments, but can’t do it where there is a nil entitlement and we can exercise a discretion not to recover an overpayment.”  This is a pathetic excuse for wasting public funds and, in any event, does not explain why it made this appeal when it had a decision of the tribunal that it could rely on.  If the discretion had been exercised and the claimant informed, a lot of time and money would have been saved.

     

    1. The change of circumstances by which the claimant moved from one benefit to another was plainly a change of circumstances that required to be notified, but with no change as to his income, it did not on its face suggest any need for any change in benefit entitlement.  The council, however, relied on regulation 7(2)(i) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (the 2001 Regulations) which, with certain exceptions, provides that a council may supersede an earlier decision awarding entitlement when the claimant has subsequently become entitled to an award of a variety of benefits including ESA.

     

    1. It then chose to supersede the original decision, although I am left unclear why it did so, given that it had a discretion not to do so and it appears to me that the only rational course when the claimant’s income remained unchanged was not to do so.

     

    1. Having superseded the original decision, by a decision made in November 2012, it then made an overpayment decision in respect of the 5 days period to which I have referred and a new award of the same amount of benefit from the end of that 5 days period.  Its reasoning, as put to the tribunal (by which time it was relying on the Council Tax Benefit Regulations 2006 instead of the regulations for those who had attained state pension age), was that

     

    (a)  The superseding decision took effect from the date on which entitlement arose to the new benefit (see regulation 8(14) of the 2001 Regulations), that is from 3 October 2012; and

    (b)  Regulation 67(1) of the Council Tax Benefit Regulations 2006 provided that, with certain irrelevant exceptions, “a change of circumstances which affects entitlement to, or the amount of, council tax benefit (“change of circumstances”), shall take effect from the first day of benefit week following the date on which the change actually occurs, and where that change is cessation of entitlement to any benefit under the benefits Acts, the date on which the change actually occurs shall be the day immediately following the last day of entitlement to that benefit.”

     

    1. In allowing the claimant’s appeal, the tribunal relied on regulation 8(2)(c) of the 2001 Regulations which provides that where the superseding decision is made on the ground of a change of circumstances, it takes effect on the date on which the change of circumstances is to take effect in accordance with regulation 67 of the Council Tax Benefit Regulations.  Regulation 8(14) provided that the supersession arising from the change of circumstances of a new award of benefit was to take effect from the date of entitlement to that benefit.  The claimant was not to be regarded as in receipt of payments which he had never received as entitlement to benefit fell to be superseded from the date of termination of the existing award and the start of the new award.

     

    1. In my judgment, this is not a case in which regulation 67(1) has any application as the change of benefit from jobseeker’s allowance to ESA was not, by itself, something which affected entitlement to, or the amount of council tax benefit.  It was not, therefore, a change of circumstances as defined in regulation 67(1).  The thing which the council has suggested affected entitlement to council tax benefit or the amount of it was not the change of benefit but its own Kafkaesque decision to supersede the award when the claimant’s income was unchanged and his entitlement to benefit based on that income was unchanged.  The superseding decision awarding the same benefit as before therefore took effect from 3 October 2012 under regulation 8(14) of the 2001 Regulations, and not from the first day of the following benefit week.

     

    1. It is unnecessary for me to express any view as to the apparent conflict in some circumstances between regulation 8(2) and regulation 8(14) beyond stating that whatever date is the appropriate date when there is such a conflict, it appears to me that the result must be that it only income which the claimant has actually received that is to be taken into account and that no fictional income is to be treated as added by virtue of the regulations.

     

     

     

    (signed)         Michael Mark

                            Judge of the Upper Tribunal

     

                            10 June 2014

     

     

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