Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                       Case No.  CH/1277/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Mark

 

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and substitute my own decision allowing the appeal and finding that the overpayment repayment decision (if there was one) was made before there was an overpayment as the only resulted from the revision or supersession of the original decision or decisions to award benefit.

 

This decision does not prevent the council from now making a fresh overpayment decision but before doing so it should have regard to the issues identified in the reasons below and should consider whether, in the light of the matters referred to and its own undisclosed documentation and other evidence, the claimant falls within regulation 8(1)(c) of the Housing Benefit Regulations 2008 for all or part of the time covered by any decision and whether in all the circumstances, including the apparent failure of the housing benefit team to see any need to act even when told by the housing department that the claimant was not the tenant, the claimant could reasonably be expected to realise that there was an overpayment at any stage.

 

 

REASONS FOR DECISION

 

1.    This is an appeal with the permission of an Upper Tribunal Judge.   The claimant had applied for housing benefit in 2010, supplying a copy of the relevant tenancy agreement which was with the council itself and which showed the tenant to be his brother and not himself.  He did, however, describe himself as the tenant in the application form.  The council failed to notice that the tenancy agreement was with the brother and it awarded housing benefit. 

 

2.    I also note that the tenancy produced started in July 2004 whereas the claimant stated that he had moved into the property in December 2009, despite being shown as living there in 2004 in the tenancy agreement.

 

3.    The mistake appears to have been discovered on 25 November 2011 (file, p.25) and by letter dated 13 December 2011 a benefits officer asked the claimant to arrange an interview with him to be attended by the claimant and his brother (file, p.22).  His benefit appears to have been suspended from 5 December 2011, as the overpayment claim to which this appeal relates extends only to 4 December 2011.

 

4.    It would appear that the brother was away for about 6 weeks at around this time and the interview took place with another officer after his return.  The record of the interview is undated but it would appear that it was in early June 2012 and that it was explained to the claimant and his brother that as only the brother had a rental liability benefit could not be paid to the claimant.  They responded that they had been dealing with a particular council employee who had advised them that they both had the liability to pay the rent.  The employee conducting the interview to them she would check with the council housing and confirm any decision in writing.  That enquiry appears to have been made by email on 7 June 2012 and produced a response on 8 June that, as discussed on 7 June 2012 that the brother was the sole tenant and the only one liable for the rent.  The enquiry, however, was made to a different employee from the person identified by the claimant and neither the request nor the reply refers to the employee who is said to have told the claimant that they were both liable for the rent.

 

5.    According to the submissions of the council employee who conducted that interview housing benefit had been terminated on 1 March 2012 following failed attempts to arrange a meeting.  There is no letter terminating benefit on the file but only a letter of 1 March 2012 stating that the claimant had been paid too much benefit because he and his brother had failed to attend an interview with the original benefit officer who had written the letter of 13 December 2011.  The overpayment referred to is council tax benefit of £128.70 from 5 December 2011.  It appears from the submissions by the council to the tribunal that this overpayment was not pursued because the council concluded that the claimant was not liable for the council tax in the first place.  There is no suggestion in that letter that any decision had been taken to supersede the original award of housing benefit at that time and no other letter is included relating to such a decision.  There is a letter from the claimant dated 6 April 2012 stating that he wished to appeal the decision dated 1 March 2012 stating that the claimant had contacted the benefits office on five occasions between 16 December 2011 and 25 January 2012 and the housing officer would not see him (pp.14-15).  I note that the date on this document looks like 6 June 2012 but the council’s submissions make it clear that it was received on 6 April 2012, as does the council’s notification of the appeal which appears in the tribunal file.  I further note that this notification is dated 11 June 2012, immediately after the overpayment decision below in the sum of £3292.

 

6.    The overpayment decision to which this appeal has been thought by the council and the tribunal to relate is dated 8 June 2012 and relates only to housing benefit, it being stated that there was no council tax overpayment as the claimant was not liable for council tax.  It accepted that the council made an error when the award was made in that it had the correct information but expressed the view that the claimant should have known he was being overpaid and therefore the council intended to recover the overpayment from him.  Detailed calculations of the overpayment were to follow, but there was nothing in the file prior to the hearing to suggest that this had happened.    There is also nothing on the file to suggest that any appeal was made against this decision, but it would appear that the council and the tribunal proceeded on the basis that the appeal related to this overpayment.  This could only have happened because neither read it properly.  The confusion appears to have caused in part at least by the council’s delay in forwarding the appeal of 6 April 2012. 

 

7.    It would also appear that there is a history of rent arrears at the property dating back at least to 2008 as appears from what appears to be a typed transcript of notes from the housing department.  Court proceedings appear to have been commenced as a result.  One of these notes dated 20 June 2008 (p.36) reveals that the claimant had told the writer that he lived in the property with his brother and was not aware of the arrears.  He offered to clear the arrears and set up a direct debit for future payments and asked if the council could withdraw the court proceedings.  He was told that the arrears were too high to “pull the court proceedings”.  He proposed to pay £650 on 23 June 2008 which included the current rent and nearly 300 towards the arrears and would try to make another payment before the end of July which would clear the arrears.  On that basis it was agreed to ask the legal team not to proceed if all arrears were cleared by the end of July and the claimant agreed to this.  This was confirmed by letter dated 20 June 2008 to the claimant.

 

8.    On 21 July 2008 there was a further conversation with the claimant about a payment of £650 and about his liability for the costs of the proceedings as well as the arrears.  The payment of the £650 appears to have been made by debit card on 24 July (p.35).  The possession proceedings were adjourned as a result on condition that the claimant paid the current rent plus £291.13 per month towards the arrears, a total of £650 per month until the arrears were cleared and he was also to be liable to pay £150 costs of the possession proceedings.  This was confirmed in writing to the claimant by letter of 29 july 2008 (p.34).

 

9.    A note of a telephone call from the brother of the claimant on 15 August 2008 shows that the brother asked if he had a joint tenancy with the claimant and that the claimant and his family wanted to move in.  There seem to have followed some payments by the brother and one or other of them appears to have set up a direct debit.  There appear to have been problems with payments a year later in September 2009, and there appears to have been some correspondence although who that was with and what it said is unclear from the notes.  Copies of the actual correspondence have not been produced by the council.

 

10. There was then a further telephone conversation with the claimant on 14 December 2009 (p.32) when he said that his brother had got married recently and was away.  He was told of the arrears, which appear to have amounted to £461.50 and asked to be given until that Friday to clear them.  There followed a further telephone call on 21 December from the claimant who then said that his brother was away in Afghanistan for a year looking after their mother and he, the claimant, was concerned that he could not afford to pay the rent.  The note observes that apart from arrears “the bigger problem is that his brother is the named tnt and there is now a query over the status of his tenancy.”  Another telephone call followed the next day when a further and not altogether consistent account of what was happening was said to have been given by the claimant and he was advised the council would serve a notice relating to the rent arrears and if they increased they would proceed to court because they were doubtful if the brother was occupying the property as his principal home.

 

11. In a further call on 8 January 2010 the claimant wanted to know how to clear the arrears and he is said to have been advised that he was not the tenant and the matter needed to be discussed with his brother who was the tenant. The claimant told him his brother had gone on honeymoon but had to stay with his mother who was ill and needed a kidney transplant.  He was offering to clear the arrears on behalf of his brother.  He was advised that if he cleared the arrears no further action would be taken “under the arrears” (p.31).  In a further call on 13 January 2010, apparently from an Afghan number, the brother is reported to have said that he had borrowed £1300 to clear the arrears and that his brother would be back around 10 February.  He was given until 22 January to clear the arrears.

 

12. According to the claimant (p.30) this money had been sent but had been used to pay other pressing debts.  The claimant is again said to have been told that he was not a joint tenant.  It would appear that court proceedings were commenced as a result of the rent arrears and that on 28 June 2010 the housing department was telephoned by a lady from the citizens advice bureau on behalf of the claimant who was also told that the claimant was not a tenant but who was offering on his behalf to meet the current rent plus £20 per month towards the arrears, which was rejected as not enough.  The brother was said to be having problems with his visa application to get back to the UK.

 

13. It may be that in the course of this conversation the housing benefit department learned that the claimant was in receipt of housing benefit (he had apparently been awarded the benefit from 1 March 2010), because by email of 28 June 2010 somebody there wrote:

 

“Hi Benefits Officer The above claimant is in receipt of Housing Benefit.  [The brother] (the tenant) is not in the country and his brother [the claimant] who is not a joint tenant was living at [another address] until he moved out in November 2008 and moved into this property.  There are high arrears on the rent account and have referred the case to court and waiting a court date.  I would be grateful if you could look into this case for me.  Many thanks”

 

14. I am unclear whether there was any response from the benefits officer.  There is no evidence at all from the council in this case as to this was or what was then done, except that the person dealing with the matter in the housing department told the brother, who had by then returned to the UK, on 19 July 2010 that the claimant had been in receipt of housing benefit but this had now stopped and the brother had said he would be going to housing benefit with all the paper work to sort it out.  On 2 July 2010 the claimant had paid a further £700 and offered to pay a further £500 by the following Wednesday.  That sum appears to have been paid either by the claimant or by his brother on 15 July 2010. 

 

15. On 3 July 2010 the claimant is stated to have called the housing department to say that he would be paying £200 that day and that he had applied for housing benefit from 14 July 2010.  He was told that the possession proceedings would be adjourned for 28 days to give him time to clear the arrears or get housing benefit onto the account. He was to call back once he had made the payment at the post office.  The only recorded payment was £100 said to have been made the following day by “the tenant”.  On 5 August 2010 the possession proceedings were adjourned for 28 days to allow the claimant time to address his housing benefit claim.  A check with housing benefit on the same day on the progress of his application produced the response that there was no current application for him but on telephoning the claimant the caller was told by him that he had applied for JSA and had completed a housing benefit application, asking for it to be backdated to 14 July 2010.  His brother was also said to have applied for benefit but he worked part-time (p.28).  All this was confirmed by letter of 6 August to the claimant from the housing department.  I do not know if this was copied to the housing benefit department.

 

16. There is then a note on 17 August 2010 “checked comino and [the claimant] has supplied info to hb” (p.27).  While I am assuming that this was the claimant, who had supplied the information, there does appear to be some confusion arising from the next note which refers to a call from the DWP confirming that [the name is that used throughout the earlier notes for the claimant] is the tenant and the claim is being processed.  There were then further calls apparently to and from the claimant in which the claimant stated that he was awaiting a decision on the housing benefit claim.  It also appears that all the rent arrears were cleared, again apparently by the claimant but that they soon went back into arrears, although further payments were then made (pp.27-26).

 

17. In August and November 2011 there are references to further arrears and to a housing benefit claim being made, and on 25 November.2011, as I have already indicated there is a reference to the call from housing benefit to confirm the identity of the tenant.

 

18. Nothing relating to all this has been produced from the housing benefit records.  All the information comes from the housing department despite the fact that there were several occasions when the housing benefit team was contacted.  The evidence suggests that, if what the claimant stated to the housing department was correct, he was in and out of benefit during the period of the alleged overpayment, with the likely result that any payment of benefit arising from the initial claim was limited to a short period.  None of this was commented on by the person making submissions for the council on this appeal and no records were produced at this stage showing benefits awarded or paid.

 

19. There is then on the appeal file a letter dated 27 June 2012, by which HMCTS is said to have notified the claimant that his appeal had been received and he was given the standard form to complete to say if he wanted an oral hearing.  Despite the date on this letter, and the date of 27 June 2012 on the accompanying uncompleted form in the file, the actual form in the tribunal file which the claimant completed and returned has the typed date of issue of 9 July 2012.and bears the same appeal reference number.

 

20. The form asks the claimant if he wants to have a hearing where he or his representative can put his case and explains that if he ticks “NO” the tribunal would go ahead on the basis that he had no objection to the appeal being decided by the tribunal in his absence.  He could still write to the tribunal with anything he would like the tribunal to take into consideration, but was asked to do so within 14 days.  Nothing was said either about a hearing at which the tribunal would put its case even if he did not want a hearing or about the tribunal then looking at additional documents which he would have no opportunity to see.  The claimant did say that he did not want a hearing where he could put his case and he returned the form dating it 16 July 2012.

 

21. In forwarding the notification of the appeal, the council advised HMCTS that it did want an oral hearing and that a presenting officer would attend.  This was not brought to the attention of the claimant when he was given the form to complete as to whether he wanted such a hearing.  Once the council had indicated that it wanted an oral hearing, the tribunal had no option but to hold one.  In those circumstances, the standard enquiry form used by the tribunal is highly misleading, and capable of leading a claimant to think that there would be no oral hearing at all.  What it should have said is that the tribunal would be holding an oral hearing which the claimant could attend and asking whether he wished to attend it. 

 

22. On the other hand, the tribunal did subsequently, on 20 September 2012, send to the claimant notice that the case would be heard on 16 October 2012, giving details of the time and place.  That letter should have warned the claimant that a hearing would still take place and it is not at all clear to me that the claimant, after receiving that letter, should have been in any doubt that somebody from the council may well turn up to put the council’s case.  I note that the claimant claims not to have received this letter.

 

23. The letter continued by telling the claimant to bring with him the appeal papers which had been sent to him by the council and that if he had any further evidence he should send it at least 7 days before the tribunal hearing.

 

24. The claimant did not attend but the council did.  At the hearing it produced what is described in the record of proceedings as a bundle of decision notices although many are benefit summary letters.  The bundle ran to around 130 pages, commencing with a new claim calculation dated 12 March 2010 which includes both a claim reference and a rent reference.  There is a further new claim calculation, which appears to refer to council tax benefit, dated 15 March 2010.  There is then a revised award of housing benefit on 30 March 2010, followed by a further housing benefit revision based on change of occupancy and dated 14 September 2010.  On the following day there was another change stated to be because the claim was withdrawn or information not supplied.  No explanation of this seems to have been offered, but by a further decision on 15 December benefit again changes retrospectively.  The last two of these documents are stated at the foot to be for information only detailed and legal letters being included with them although those letters have not been disclosed by the council.

 

25. Benefit decision notices dated 15 September 2010 (pp.41I-41K and 41M-41N) refer to the claim for benefit having been cancelled because the claim was withdrawn or information not supplied but again no details are supplied.  It may be that whatever was happening was what was being referred to in the housing department notes but this is unclear.  There follow a succession of benefit decision and benefit summary notices, together with some overpayment decisions relating to council tax, but there are also in the middle of this decision notices dated14 July 2011 re-instating benefit with accompanying calculations (pp.41CB-41CP).  There is no explanation as to what happened but this again may account for some of the entries in the housing department notes.

 

26. Finally there is a decision notice dated 2 March 2012 “Claim Cancelled Claim Withdrawn Information Not Supplied” (p.41DN and 41DQ).  The document states that the claimant’s claim for benefit has been cancelled from the above date for the reason shown.  The housing and council tax benefits were stated to end on 4 December 2011 having commenced on 29 November 2010.  I note that this decision does not give a comprehensible reason for the decision and that the decision does not affect any award before 29 November 2010.

 

27. There follows a decision notice of the same date relating to the overpayment of council tax benefit of £128.70 between 5 December 2011 and 31 March 2012 (p.41DO).  as I have already noted in view of the statement in the submissions that there was no recoverable amount of council tax benefit, it would appear that this and other claims in relation to overpaid council tax benefit (pp.41DP, DU, DV, DW and possibly elsewhere) have not been pursued. 

 

28. Finally, by a decision notice dated 9 June there is a statement “Claim Cancelled, No Longer Eligible”.  Both housing and council tax benefits are stated to have commenced and ended on 1 March 2010 (p.41DT).  There is also decision notices of the same date that there has been an overpayment of  stated amounts of housing benefit between 1 March and 4 December 2011 of, in total, £1245.26 (pp.41DX-41EB) which include two decisions where the old benefit and the new benefit are both stated as nil but overpayments are conjured up of £87.84.  It is plain from these decision notices, which state that nothing is recoverable and that the sums in question will be “pended awaiting a decision” that there had been no decision at that stage as to whether any sum was recoverable except in respect of £54.84 which it is stated at p.41EA would be recovered against the claimant’s rent account.  As that decision does not disclose any overpayment it should be set aside.  The total, including the magical £87.84 came to the £3292 recoverable overpayment which the tribunal upheld.

 

29. The council, however, rely on a letter dated 8 June 2012, the date before the benefit awards were superseded or revised, as being or evidencing the repayment decision.  Although there are many council tax benefit overpayment decisions in evidence, there is not a single housing benefit repayment decision.

 

30. The tribunal was in clear error of law in the following respects in its decision which merely addressed the question of whether there was an official error and whether the claimant could reasonably be expected to have realised that he was being overpaid:

 

a.    It failed to note that the overpayment decision appealed against on 6 April 2012 could not have been the alleged overpayment decision communicated by the letter of 8 June 2012.

b.    It failed to adjourn the proceedings to enable the claimant to have an opportunity to deal with the calculation of the alleged overpayment of £3292 when there was nothing to suggest that the overpayment calculations had been provided to him at least as part of the hearing bundle and possibly at all.

c.    It failed to note the error as to the calculations pointed out in paragraph 28 above.

d.    It failed to note that the letter claiming repayment preceded any decision to remove benefit and any decision that there was a repayable sum as a result, the decisions removing benefit left open for future decision whether the overpayments were recoverable.

e.    It failed to consider whether the claimant may in all the circumstances be entitled to housing benefit for all or some part or parts of the period under review by virtue of regulation 8(1)(c) of the Housing Benefit Regulations 2006 as being “a person who has to make the payments if he is to continue to live in the home because the person liable to do so is not doing so” and “he is some other person whom it is reasonable to treat as liable to make the payments”.  From the history of the possession proceedings and the defaults of the brother, and the arrangements made between the council and the claimant to suspend the proceedings in return for his paying the rent, and his undertakings to pay it, it is hard to see how he could not be such a person for at least a substantial part of the time.  How long may depend on which payments were made by him and which by his brother, as to which the council housing department has at least some further information and the claimant may also be able to assist by reference to his bank statements.

f.     It failed to enquire into and make findings as to what took place which led to the suspension and removal of benefit apparently more than once during the period under review.  It is plain that the council’s housing benefit team had communications as to these matters with its housing department and knew from it that the claimant was not the tenant yet decided to continue or resume benefits.  It should also have had communications as to this with the claimant.  There must be documentation as to this, and possibly other evidence which the tribunal should have adjourned to obtain.

g.    The tribunal failed properly to consider whether the claimant ought reasonably to have realised that he was being overpaid benefit given that the housing benefit team itself took no action even when it was pointed out in June 2010 that the claimant was not the tenant (see para.13 above), and it was clear to him throughout that the council knew that he was not the tenant.

 

31. It is plain that the tribunal seriously erred in law and that its decision must be set aside.  I have then to consider what to do bearing in mind that there is no letter of appeal from the claimant in relation to the actual overpayment decisions.  From the time, before his actual time to appeal expired, his earlier appeal was referred to the tribunal on the basis that it was against the decision purportedly recorded in the letter of 8 June 2012 everybody, including the claimant proceeded on the basis that that was what was being appealed.  I have come to the conclusion (1) that he should be treated as having appealed that decision and (2) that, if there was a repayment decision before 9 June 2012 then there was no power to make it because at the time the payments that had been made were made pursuant to decisions that had not then been revised or superseded.

 

32. It therefore appears to me that I should substitute my own decision to that effect.  This does not prevent the council from making a fresh repayment decision based on the decisions of 9 June 2012, but before doing so it should consider carefully whether it can seriously be contended on the basis of the evidence which it has not disclosed as well as that which it has disclosed, whether the claimant would have been entitled to benefit even though not a tenant by reason of regulation 8(1)(c), and whether it can seriously be contended that in the light of the matters to which I have referred and any other evidence it may possess that the claimant could reasonably be expected to realise throughout or at all that the sums paid were overpayments.  It will need to consider this in relation to each of the payments made to the claimant bearing in mind both the claims history at the time and the fact that when told that the claimant was not the tenant the housing team did nothing.

 

33. If a further repayment decision is made the claimant will have a fresh right of appeal.

 

34. The council may also wish to bear in mind that it has the duty to help the tribunal to further the overriding objective of dealing with matters fairly and justly and that the decision maker has a duty under regulation 24(4)(a) and (b) and 24(5) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 to provide to the tribunal and to the other party with the response to the appeal a copy of any written record of the decision under challenge and any statement of reasons for the decision as well as copies of all documents relevant to the case in the decision maker’s possession.  Under regulation 24(7) there is also a time limit for sending further documents to the tribunal and a requirement to provide them to the other party at the same time.  The decision maker in this case is the council and the documents should include the relevant documents from both the housing department and the housing benefit team and not just a summary of extracts from the housing department.  The council totally failed in this duty in the present case.

 

35. The tribunal should consider how best to make it clear to a claimant where an oral hearing has been sought by a council that even if the claimant chooses not to have a hearing there will still be one at which the council will be represented and will give evidence.  It should also consider how best to deal with late evidence from the council in those circumstances and will normally need to permit the claimant an opportunity to deal with it if it is relevant.

 

.

(signed)         Michael Mark

                        Judge of the Upper Tribunal

                        14 February 2014