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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Godwin v Rossendale Borough Council [2002] EWCA Civ 726 (3 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/726.html Cite as: [2002] EWCA Civ 726

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
(His Honour Judge Maddocks)

		Royal Courts of Justice Strand London WC2 Friday, 3rd May 2002

Friday, 3rd May 2002

1. LORD JUSTICE PETER GIBSON: The claimant, Ryan Godwin, appeals from the order made by His Honour Judge Maddocks in the Manchester County Court on 26th September 2001 dismissing Mr Godwin's claim to recover from the defendant, Rossendale Borough Council ("the Council"), £1,926.72 plus interest in respect of housing benefit payable to him directly as a landlord on account of rent due from a tenant. The Council decided that housing benefit in that sum was overpaid to Mr Godwin because a tenant in respect of whom housing benefit had a been paid to Mr Godwin had not been in occupation of premises of which Mr Godwin was landlord. The Council recouped the overpaid sum by way of set-off against housing benefit which was properly payable to Mr Godwin as landlord in respect of rent payable to him by another tenant. Mr Godwin claimed that the Council failed to carry out correctly the statutory procedure governing the recovery of overpaid housing benefit. The judge rejected that claim, but gave Mr Godwin permission to appeal.
2. Under section 130(1)(a) of the Social Security and Benefits Act 1992, it is a condition of entitlement to housing benefit that the claimant of it should be occupying the dwelling in respect of which he claims the benefit as his home. A claimant is treated as occupying as his home the dwelling normally occupied by him as his home and is not to be treated as occupying any other dwelling as his home (see Regulation 5(1) of the Housing Benefit (General) Regulations 1987 ("the Regulations")). Recovery of overpaid housing benefit is governed by section 75 of the Social Security Administration Act 1992, as amended. By section 75(1) overpaid housing benefit may be recovered by the authority which paid the benefit (see also Regulation 100 of the Regulations). It is recoverable from the person to whom it was paid, but in circumstances prescribed in the Regulations it may be recovered from another person. Any amounts so recoverable may, without prejudice to any other method of recovery, be recovered by deduction from housing benefit (see section 75(4)). Section 75(5) provides, so far as material:

"Where an amount paid to a person on behalf of another person is recoverable under this section, subsections (3) and (4) above authorise its recovery from the person to whom it was paid by deduction-

(a) ...

(b)...

(c)from prescribed benefits paid to him to discharge (in whole or in part) an obligation owed to him by any other person."

3. Section 75(6) provides, so far as relevant:

"...where an amount is recovered as mentioned in paragraph (c) of ... subsection [(5)], the obligation specified in that paragraph shall in all cases be taken to be so discharged."

4. Thus, an overpayment of housing benefit paid to a landlord direct in respect of one tenant may be recovered from housing benefit paid to the landlord to discharge rent owed to the landlord by another tenant. Regulation 94 allows payment of benefit in the form of a rent allowance to a landlord where a claimant of housing benefit has requested or consented to such payment.
5. In Regulation 98 of the Regulations "overpayment" is defined as meaning any amount which has been paid by way of housing benefit and to which there was no entitlement under the Regulations. Regulation 99(1) provides so far as material "that any overpayment shall be recoverable". By Regulation 101(1) a recoverable overpayment shall be recoverable from specified persons, and the persons from whom it can be recovered include, "the claimant or the person to whom the overpayment was made".
6. By Regulation 77(1) of the Regulations, notification has to be given to any person affected by a determination that housing benefit had been overpaid and such notification has to include a statement as to the matters which are set out in Schedule 6 to the Regulations. The term "person affected" is defined in Regulation 2(1) as meaning:

"a person who is-

(a)a claimant;

... or

(d) a person from whom the appropriate authority determines that an overpayment is recoverable in accordance with Part XIII,

and whose rights, duties or obligations are affected by a determination, whether or not on review, or by a decision on further review."

Part XIII deals with overpayments.

7. Paragraph 14(1) of Schedule 6 prescribes what matters must be included in a statement where an authority makes a determination that there is a recoverable overpayment.
8. Paragraph 14(2) is in this form:

"In a case where it is-

(a)determined that there is a recoverable overpayment;

(b) determined that that overpayment is recoverable from a landlord; and

(c) decided that recovery of that overpayment is to be made by deduction from a rent allowance paid to that landlord to discharge (in whole or in part) an obligation owed to him by a claimant (`claimant A'), not the being the claimant on whose behalf the recoverable amount was paid,

the notice of determination to that landlord shall identify both-

(i)the person on whose behalf the recoverable amount was paid to that landlord; and

(ii) claimant A."

9. Provision is made for a person affected by a determination to make written representations to obtain an internal review of the determination (Regulation 79(2)), and if that person gives written notice requesting, a further review, a Review Board will conduct a further review of the determination (Regulations 81(1) and (3)).
10. Regulation 82(2) provides:

"Subject to the provisions of these Regulations-

(a)the procedure in connection with a further review shall be such as the Chairman of the Review Board shall determine

...

(c)at the hearing any person affected has the right to-

(i) be heard, and may be accompanied and may be represented by another person whether that person is professionally qualified or not, and for the purposes of the proceedings at the hearing any representative shall have the rights and powers to which any person affected is entitled under these Regulations;

(ii)call persons to give evidence; and

(iii) put questions to any person who gives evidence."

11. By Regulation 83(1) the Review Board's task is to decide whether to confirm or revise the determination. In so doing it has to apply the Regulations as though any duty imposed on or power or discretion conferred on an authority were imposed or conferred on the Review Board (Regulation 83(2)).
12. By Regulation 83(4) the Chairman of the Review Board is to give a written statement of the reasons for the Board's decision. No procedures are prescribed for an appeal from the Review Board.
13. I must now flesh out the facts a little more fully. Mr Godwin owns property known as The Copper Kettle at 624-632 Bacup Road, Rossendale. There he lets out bedsitting rooms and provides meals. The tenants are persons of limited means, whose rents are mostly paid by the Council through housing benefit. One tenant, occupying Room 7, was Carl Fogg. Prior to 28th April 1996 Mr Fogg requested payment of his housing benefit directly to Mr Godwin. The Council informed Mr Godwin before receiving payment that, in the event of benefit being overpaid, recovery of the overpayment would be sought from him. On 17th March 1997 the Council wrote to Mr Fogg informing him that following investigation it was the opinion of the Council's officers that he had not occupied Room 7 since 26th April 1996 and that his housing benefit had been cancelled with effect from 28th April 1996. He was informed of his right of appeal. A formal notification of the cancellation was then sent to him on 20th March 1997. With it came a leaflet giving him information as to his rights of appeal. Mr Fogg appealed by letter dated 30th July. There was a review by the Council of the decision. But on 18th August 1997 Mr Fogg was informed that the Council stood by its decision, and that it had evidence that The Copper Kettle was not his main home and residence. He was informed of his rights to a further review by a Review Board.
14. Mr Fogg invoked that right, and his case was heard on 6th January 1998. Mr Godwin was excluded from the hearing, it being the Council's view, on the advice of its assistant solicitor Mr Lester, that Mr Godwin was not entitled to be present and was not a person affected, there having been no determination at that date by the Council to recover any overpayment of housing benefit from Mr Godwin. The Review Board by its decision on 6th January 1998 confirmed the Council's decision. It found as a fact that Mr Fogg was not occupying The Copper Kettle as his home. It gave as its reasons that, contrary to what he alleged, Mr Fogg did not sign all his claim forms. That, it said, cast doubt on his veracity generally. It also said that on a prearranged visit on 24th January 1997 to Mr Fogg's room there was no sign of his personal possessions, clothing or toiletries, such as could be reasonably expected if he had been the occupant.
15. On 29th January 1998 the Council wrote to Mr Godwin notifying him of its intention to recover the overpayment of £1,962.98 in respect of Mr Fogg's housing benefit from Mr Godwin as landlord. In its letter it said that the overpayment would be recovered by a "Sundry Debtor Account" of which Mr Godwin would be notified in due course. Reference was made to the dismissal by the Review Board of Mr Fogg's application and to the Board's finding that Mr Fogg did not live at The Copper Kettle from 29th April 1996. Mr Godwin was informed of his right of appeal. On 6th February 1998 he wrote to the Council asking that he be supplied with a statement of the reasons for the conclusion reached by the Council.
16. Mr Godwin appears to have written to the Council on 2nd February 1998 complaining of his exclusion from the Review Board hearing in January, because on 10th February 1998 the Council replied to a letter of 2nd February, saying that Mr Godwin had not been a person affected under the Regulations with a right to attend the Review Board hearing in relation to Mr Fogg's housing benefit.
17. On 13th February 1998 Mr Godwin wrote to the Council seeking under Regulation 86(1) the setting aside of the Review Board's decision as a person affected by that decision and complaining that, in breach of the rules of natural justice, he had been excluded from attendance. By a letter dated 18th February 1998 the Council replied, repeating that Mr Godwin was not a person affected. On 5th March 1998 the Borough Treasurer of the Council wrote again to Mr Godwin, saying:

"I refer to your letter of 13th February 1998 regarding the recovery of an overpayment of Housing Benefit for the period 29th April 1996 to 9th February 1997 for £1,962.98 in respect of Mr C Fogg.

As you are aware, enquiries have been made and investigations have taken place over a considerable period of time in respect of Mr Fogg. On the 6th January 1998 Mr Fogg's appeal was dismissed by the Review Board, who found that he did not reside at the above address from the 29th April 1996. It is the opinion of the Officers of the Authority that as you provide meals for your tenants and assist them with Housing Benefit matters, you would be aware that Mr Fogg was not residing at the above address as his main home and residence.

A little later in the letter the Borough Treasurer said:

"In accordance with Regulation 79(2) of the Housing Benefit (General) Regulations 1987, I have reviewed my original decision of 29th January 1998 and I regret to inform you that I intend to uphold my original decision and recover the overpaid Housing Benefit from yourself, in accordance with the above regulations, as the overpayment is deemed to be a recoverable overpayment as the Authority's decision was upheld by the Review Board on 6th January 1998."

18. Mr Godwin was told of his right to a further review by a Review Board.
19. On 18th March 1998 Mr Godwin wrote again to the Council expressing his wish to appeal against its decision to deny Mr Fogg his housing benefit and against the Council's decision to recover the alleged overpayment from himself.
20. A Review Board on 30th July 1998 considered three separate applications. One was Mr Fogg's application for a review in respect of housing benefit for a different period, another was the application of another tenant of Mr Godwin's, and a third was Mr Godwin's own review application in respect of the decision to recover the overpayment from him. Mr Godwin had appointed John O'Donnell, a director of the Residential Landlords' Association Ltd, to represent him. Mr O'Donnell also represented the other two tenants in their applications. Mr O'Donnell was therefore present at all three hearings. Mr Lester took the view that at Mr Godwin's own review hearing Mr Godwin should not be present when evidence was given by two witnesses for Mr Godwin, and Mr Lester so advised the Review Board. Mr Godwin was therefore excluded from that part of the proceedings.
21. The Board upheld the Council's decision in these terms. Having stated the decision, the Board said this:

"FINDINGS OF FACT

A.Claimant was not occupying the Copper Kettle, 624-632 Bacup Road as his home during the period in question.

B.The determination dated 29th January 1998 complies with Regulation 77 of the under-mentioned Regulations.

C.Regulation 77(2) does not apply, the determination being made after 30th June 1988.

D.Ryan Godwin was not a person affected by the 6th January 1998 Review Board.

E.No request had been made to Borough Treasurer for Paul Latham's notes to be made available to today's Board.

STATEMENT OF REASONS

A.No evidence to disturb the findings of fact of the Board dated 6th January 1998. Medical/dentist records not probative.

B.The reason for the determination is clear on reading the document as a whole.

D.Regulation 2(1) of the Regulations.

E.Ryan Godwin's own answer to question."

REGULATIONS APPLIED

22. Regulation 2(1) (definition of `person affected')..."
23. Then various other provisions of the Regulations are referred to.
24. For 19 months, it appears, very little occurred, Mr Godwin being left in possession of the overpaid money. On 1st March 2000 the Council wrote to Mr Godwin, referring to the overpayment of £1,962.98 in respect of payments made to him on behalf of Mr Fogg for the period 29th April 1996 to 9th February 1997 and informing him that the recovery of the overpayment was being sought from Mr Godwin. He was told that the overpayment had been taken from the entitlement to housing benefit of another tenant, Mr Clarke. £1,926.72 had already been taken, and a further £36.26 was to be taken from the next payment in March. We have been told by Mr Gregory, appearing for the Council, that the sum recovered in respect of Mr Clarke's housing benefit was so large a sum because it represented housing benefit which Mr Clarke had claimed but which the Council had refused, but the Council had later had a change of mind and held that the sum was payable. Mr Gregory told us that the sum became due to Mr Godwin only in February 2000, that is to say very shortly before the letter of 1st March.
25. Mr Godwin on 18th March 2000 by letter challenged the legality of the deduction. He demanded payment of what had been deducted. On 16th March he commenced these proceedings in the county court. The judge heard evidence from witnesses on both sides. They included Mr O'Donnell, who had represented Mr Godwin before the Review Board.
26. The judge in his judgment helpfully set out the principles which he had gleaned from the authorities. They were as follows:

"(1) Where a council has followed the statutory procedure and reached a decision, the procedure for challenging the validity of that decision ... is the public law procedure of judicial review. See Plymouth Council v. Gigg [1997] 30 HLR 284 Haringey L.B.C. v. Cotter [1996] 29 HLR 682.

(2) Where the procedure has been followed and a decision has been reached by the Council, either that a benefit is payable or that a benefit paid is recoverable, the decision can be enforced in the courts, by normal procedure for recovery of money due as a debt.

(3) Where the council has failed to carry out the procedure for recovery of benefit from a claimant or a landlord, it cannot recover the money by such proceedings, and the defence that it has failed to follow the procedure is available to the defendant; Warwick B.C. v. Freeman [1997] 27 HLR 616.

(4) Likewise, and as a consequence, it cannot set off any such amount against a claim for benefit payments which are due - Jones v. Waveney D.C. a decision of His Honour Judge Mellor on 21st December 1998 and affirmed in the Court of Appeal on 29th November 1999. ...

(5) Where the council has followed the procedure but has made mistakes or failed to comply, exactly, with all the statutory requirements (that is by the Act and the Regulations) the question is whether any substantive harm has been done by the breach or, to put it another way, whether the breaches have occasioned any significant prejudice to the person affected."

27. The judge then referred to two passages from the decision of this court in the case of London Borough of Haringey v Awaritefe (1999) 32 HLR 517. At pages 526-7 Roch LJ said this:

"The fact there have been breaches of the procedure laid down by the statutory instrument is not decisive of the question whether the determination made by the authority is valid or invalid, enforceable or unenforceable. As Sedley LJ put it [pithily] in R v Solihull Metropolitan Council ex parte Simpson (unreported), it is necessary to assess `the substantive harm done by the breach'. There was no disagreement of any substance between counsel that this is the correct approach."

28. And at page 529, Otton LJ said this:

"I agree that even if there were technical breaches of schedule 6, upon which I do not propose to comment, the learned Judge was wrong to conclude that such breaches were fatal to the appellant's claim. He should have held, that the requirements in paragraphs 2 and 5 were not mandatory but directory, that none of the breaches had occasioned any significant prejudice to the respondent and that, accordingly, there had been `substantial compliance' with the schedule."

29. The judge observed that Mr Godwin did not seek to challenge the validity of the decision, and that his case was that there were defects in the procedure adopted by the Council which rendered the procedure invalid and accordingly precluded the Council from recovering the benefits in question, either directly or by way of set-off. The judge then dealt with the principal points taken for Mr Godwin by Mr Palmer, a McKenzie friend, and the judge concluded at the page 12 of the judgment:

"My conclusion is that this is not a case where the council has failed to follow the statutory procedure, so as to fail to establish any right of recovery from the landlord. It did follow the procedure. The defects, in my judgment, were not such as to have caused any substantial harm or prejudice to Mr. Godwin. It must follow that the claim, now made, fails, and is dismissed."

30. Before this court Mr Stagg appears for Mr Godwin. He identified in his skeleton argument three issues for the determination of this court:

"(1)Is it permissible for the Appellant to seek to establish that the procedure followed by the Housing Benefit Review Board was defective by way of a civil claim for payment of [housing benefit] withheld as a result of the decision of such a Board?

(2)If so, was the procedure followed by the Board defective and did any such defects cause significant prejudice to the Appellant?

(3)Is it permissible for the Appellant to seek to rely on defective procedure followed by a local authority in withholding [housing benefit] payable in respect of a tenant's liability by way of recovery of [Housing Benefit] overpaid to another tenant, and if so, was the procedure followed by the local authority defective and did any such defects cause significant prejudice to the Appellant."

31. The first issue is in fact not a live issue. Mr Gregory accepts that the county court was an appropriate forum for Mr Godwin's claim. I agree with Mr Stagg that in the present circumstances it was not an abuse of process for Mr Godwin to bring proceedings in the county court to recover a sum which he was alleging had wrongly been taken from him through the failure by the Council to comply with the legislation: see in particular Waveney District Council v Jones [1999] 33 HLR 32.
32. In relation to the second issue identified by Mr Stagg three points were taken.
33. The first is that Mr Godwin was excluded from part of the hearing by the Review Board of Mr Godwin's own application while two witnesses were giving evidence. Mr Stagg argues that it is implicit in Regulation 82(2)(c) of the Regulations that a party to proceedings before a Review Board cannot be deprived of the right to be present without a very good reason, and that there was no such reason in the present case. He says that the statutory right to ask questions belonged to Mr Godwin and that there may have been further questions which Mr Godwin could have asked. I agree with Mr Stagg that a person affected, who by that regulation has the right to be accompanied by another person, must have the right to be present throughout the hearing, save in exceptional circumstances not said to exist here. The judge was plainly troubled by the point, but he dealt with it in this way:

"(5) This perhaps, is the main point of objection, being that he was excluded from his own hearing when the other witnesses were giving evidence. I think that was a mistake on the part of Mr. Lester. While it is a practice in criminal proceedings and sometimes in civil proceedings where the evidence is critical, for witnesses to be excluded until they have given their own evidence, that is not a practice applied to the parties themselves who only rarely and for good reason, would be required to leave the court during the evidence of other witnesses.

In the first place, I think this objection may well fall within the scope of public law, which is properly within the area of challenge by judicial review."

34. The judge then referred to three passages in the judgments in the Haringey case. He continued:

"However, if I am in a position to consider the validity of the board's decision, by reference to the procedures adopted by the board at the hearing, it does not seem to me that the challenge is, in fact, successful. Mr Godwin's representative was present throughout and was well able to test the evidence of other witnesses and there was no case put forward that on some point or aspect, he would have been assisted by Mr. Godwin having been present with him. So far as this is an objection open to Mr. Godwin, in these proceedings, I do not consider that he has shown that he was prejudiced or that the procedure adopted by the Board was such that its decision should not stand."

35. Those remarks were made by the judge having heard evidence from witnesses such as Mr O'Donnell of what had occurred at the Review Board hearing. Mr O'Donnell's brief witness statement contains no hint that there was any actual prejudice caused to Mr Godwin by his exclusion from part of the hearing. It is of significance that the witnesses whose evidence Mr Godwin was not allowed to hear were Mr Godwin's own witnesses, Mr Fogg and Mr Clarke, the substance of whose evidence would surely have been known to Mr Godwin in wanting to have them called. If Mr O'Donnell had been caused any particular difficulty by the absence of Mr Godwin while the evidence was being heard, he could have asked the Review Board to allow him to take instructions from Mr Godwin. But there is no evidence of any such difficulty, and in my judgment the judge was fully entitled to conclude as he did on this point.
36. The second point taken by Mr Stagg is that the Review Board failed to decide what he called the two issues before it. The first issue was whether Mr Fogg was in fact resident at The Copper Kettle. But on the face of the Board's decision, the Board found as a fact that Mr Fogg was not occupying The Copper Kettle as his home during the relevant period. That is finding A.
37. Mr Stagg then advanced a further point in his oral submissions to us. He said that the Review Board erred procedurally in deciding the issue of fact by simply reviewing the decision of the Review Board of 6th January 1998, as he says is apparent from reason A. He rightly said that it was for the Review Board on 30th July 1998 to decide the issue afresh on the evidence before it; and he pointed out that it was the more important that it do so because of the exclusion of Mr Godwin from attendance at the January hearing.
38. There are, as it seems to me, two difficulties in the way of Mr Stagg's submission. The first is that the Review Board did hear evidence on this point from both sides at the July hearing. We have seen in our papers a two-page document dated 30th July 1998 in which Mr Coit for the Council sets out the Council's case, and no express reference is made in it to the findings made by the January Review Board. Further, there was no reason why the July Review Board should shut its eyes to the particular factual findings made in January by a totally differently constituted Review Board, nor why it should not consider whether any evidence contradicted those findings. The July Review Board, having heard and read all the evidence, was entitled to conclude as it did.
39. The second difficulty, as it seems to me, is this. Mr Stagg wants to challenge the determination of the Review Board that Mr Fogg was not occupying The Copper Kettle at the relevant time as his home. He does not want to do this directly. He says that the procedures adopted by the Review Board were wrong, in the way that I have indicated, and that Mr Godwin has suffered prejudice in that decision on the facts having been taken. He says that the whole matter needs to go back to another Review Board for a fresh decision. But before the judge Mr Godwin, through his representative, had not sought to challenge the underlying factual determination. True it is that in his witness statement, which was put before the judge, Mr Godwin had said:

"The second hearing just seemed to agree with the decision in the first hearing and found that Mr Fogg was not living at The Copper Kettle, although I knew that he was living at The Copper Kettle."

40. Another witness, Margaret Sidros, supported that evidence by her witness statement put before the judge. But it does not follow from the fact that such evidence was contained in the witness statements that that was the way the case was put to the judge. It is clear from Mr Godwin's own skeleton argument put before the judge that he was saying that he did not seek to bring into question the validity of any determination by the Review Board. The judge makes no mention at all of any point being taken for Mr Godwin such as Mr Stagg now seeks to take. Mr Stagg was not present before the judge, but Mr Gregory was. He has told us that he was assured by Mr Palmer that the issue of fact was not the subject of challenge, and he said that Mr Palmer had told the judge that he did not question the validity of the determination of the Review Board. I think that we must accept what Mr Gregory says, supported, as it is, by the conspicuous absence from the detailed and careful judgment of the judge of any reference to this point. It was for Mr Godwin through his representative to take the point before the judge and show how substantial prejudice was suffered by reason of the Board's alleged failure. This was not done, and the point cannot now be taken.
41. The second issue said by Mr Stagg not to have been dealt with by the Review Board was whether, as a matter of discretion, the Review Board would order recovery from Mr Godwin rather than Mr Fogg, both of whom were liable to make repayment of the overpayment. That complaint seems to me quite hopeless. It is not suggested that it was ever argued for Mr Godwin that Mr Fogg should be the person who should make the repayment rather than Mr Godwin himself. It is quite plain that the Review Board was deciding that the overpayment should be recovered from Mr Godwin when it decided that the decision of the Council should be upheld. It was, after all, Mr Godwin who had received the overpayment. Mr Fogg had not. It would have been astonishing in those circumstances if the Review Board had decided to recover money from Mr Fogg, a person of such impecunious circumstances as to need housing benefit.
42. The third point taken by Mr Stagg is that the Review Board was under a statutory obligation to give reasons, and he says that the reasons given were hopelessly inadequate. He goes so far as to say that the reasons left Mr Godwin "wholly in the dark". The judge dealt with this point shortly, saying:

"(6)Next, Mr. Palmer criticized the form of the Council's decision. It did not record the names of witnesses or set out the reasons in detail. Again, in so far as that is the valid criticism, it does not detract from the decision itself."

43. Mr Stagg said that some of the reasons given were incomprehensible, and in particular he pointed to two of the reasons, reasons D and E. But as Chadwick LJ pointed out in the course of the argument, the explanation of the form of the Statement of Reasons is that the lettered paragraphs correspond to the lettered paragraphs in the Findings of Fact, save that there is no reason given in respect of finding of fact C that Regulation 77(2) did not apply because of the date of the determination. That no doubt was too obvious for a further reason to have to be given. Thus the reference in reason D to Regulation 2(1) connects with the finding that Mr Godwin was not a person affected by the January Review Board. Mr Stagg said that Regulation 2(1) contained numerous definitions. So it does. But the Regulations said by the Review Board to have been applied included Regulation 2(1), and the Review Board expressly referred to the definition of "person affected". It is quite obvious what the Review Board was saying.
44. The crucial matter relates to finding A and reason A. They are undoubtedly terse. But there could, in my view, be no reasonable doubt in Mr Godwin's mind that the reason why he lost was that Mr Fogg was found not to have been occupying The Copper Kettle as his home and so was not entitled to housing benefit. It is clear that the Review Board, in reaching that conclusion, did not find that the evidence put forward by Mr Godwin at the hearing in July was sufficient to require a different finding from that reached on the evidence which had been put before the other Review Board in January. Indeed, one wonders how some of that evidence could have been challenged by Mr Godwin, relating, as that evidence did, to what was seen when Council officers visited the premises.
45. The purpose of the statutory obligation imposed on the Chairman of the Review Board to give reasons is, I accept, to enable the parties to know why they have respectively won and lost. But that does not require a judgment such as a professional judge would give, or a detailed exposition of the reasons. Mr Stagg submitted that in judicial review proceedings reasons would have been held to be inadequate. But the proceedings before the judge were not judicial review proceedings.
46. In my judgment the judge who heard the evidence about the July hearing was entitled to conclude that on consideration of this decision, being one by a lay tribunal, against the background of facts which were known to the parties, the criticism made by Mr Godwin of the inadequacy of the reasons was not a valid one. I would therefore reject Mr Stagg's submissions on the second issue.
47. On the third issue Mr Stagg submits that the procedure followed by the Council to recover the overpayment was defective, causing significant prejudice to Mr Godwin, and that accordingly the Council cannot be allowed to retain the housing benefit which it deducted by setting off the overpayment against what Mr Godwin was entitled to receive in respect of Mr Clarke's housing benefit. Mr Stagg referred in his skeleton argument to the Awaritefe case and also to the decision of Jackson J in R v Thanet District Council ex parte Warren Court Hotels Ltd [2000] 33 HLR 339. In that case that judge held, on very different facts, that failures, in part conceded, to comply with statutory requirements caused prejudice to the applicant such as enabled the judge to quash the determination to recover from the landlord in that case alleged overpayments of housing benefit in respect of nine tenants.
48. Mr Stagg takes two points. First, Mr Godwin was notified that overpayments would be recovered via a Sundry Debtor Account, whereas the overpayment was recovered by withholding money due to him in respect of another tenant. The substantive harm said to have been suffered thereby was the disruption to Mr Godwin's cashflow. But Mr Stagg has not been able to show how the actual method of recovery differed from recovery via a Sundry Debtor Account, still less that the suggested detriment of a disruption to cashflow was one which would not have occurred if the recovery had been via the Sundry Debtor Account, assuming that to have been something different. I am unable to say that an entry in a Sundry Debtor Account, which would presumably show Mr Godwin as a debtor in respect of the overpayment, required the Council to bring debt recovery proceedings through the courts rather than using a set-off. I would have thought it enabled the Council to choose the method of recovery.
49. Second, Mr Stagg makes complaint that no notice was served giving the details required by paragraph 14(2) of Schedule 6. He submits that this is of importance to a landlord since he loses his right to sue the other tenant for rent arrears, and hence for possession, by reason of section 75(6). Paragraph 14(2) applies to a case where the three conditions of subparagraphs (a), (b) and (c) are cumulatively satisfied. There is no evidence that, at the time when the Council made a determination that there was an overpayment recoverable from Mr Godwin as landlord, as evidenced by the letter of 29th January 1998, a decision within the condition of subparagraph (c) had been taken. Accordingly, until the Council had decided that recovery of the overpayment should be made by deduction from a rent allowance paid to Mr Godwin to discharge a tenant's rent obligation to Mr Godwin as landlord, paragraph 14(2) was not operative.
50. It appears that the decision was only taken shortly before the letter of 1st March 2000, when it was appreciated that there was a substantial sum payable to Mr Godwin in respect of Mr Clarke's housing benefit. Mr Godwin was then informed of the decision by that letter and was given the information required by paragraph 14(2), being told that it was Mr Fogg, on whose behalf the recoverable amount was paid to Mr Godwin, and that Mr Clarke, the claimant, was owing the obligation to Mr Godwin as landlord.
51. Mr Stagg submits that a notice of determination complying with paragraph 14(2) must precede actual recovery. I think that is right, though in the present case any breach of that requirement by the letter of 1st March 2000 could only have caused minimum prejudice to Mr Godwin, given the fact that there was a recoverable overpayment and the time period was short. I am also of opinion that when an authority decides to recoup an overpayment from a landlord by deducting it from housing benefit payable to the landlord in respect of other tenants so that paragraph 14(2) applies, the authority is obliged to notify any person affected by a further notice of determination which, in turn, confers a right of appeal. However, that right of appeal, in my view, applies only in respect of the decision referred to in paragraph 14(2)(c). The ordinary requirements of a notice of determination would apply, requiring that the person affected be informed of his right of appeal. That did not happen in the present case, the letter of 1st March being silent on that point. That was not a point taken by Mr Godwin below. In any event, I can see no real prejudice, given, as I have said, that there was an unchallengeable overpayment and that Mr Clarke's housing benefit was payable to Mr Godwin when the deduction was made by the Council.
52. In any event, I am unable to accept Mr Stagg's submission that section 75(6) assists in establishing prejudice. The purpose of section 75(6) is plainly this: when recovery is made by an authority from a landlord, who is being paid housing benefit direct on behalf of a tenant, out of the housing benefit payable to that landlord to discharge the tenant's rent obligation, the landlord could not then require the tenant to pay the rent which the housing benefit was intended to meet. Contrary to Mr Stagg's submission, the landlord loses no right as against the tenant of any value at all. The tenant, who authorises the landlord to receive the housing benefit direct so as to meet the obligation of the tenant to pay rent to the landlord, has thereby ensured that the landlord would receive what the tenant was required to pay; and it would be monstrous if the landlord who loses the entitlement to retain the rent allowance because of some overpayment in respect of another tenant could pursue claimant A for the rent. There is no disadvantage such as is claimed by Mr Stagg, even if he were right in his other submissions relating to Regulation 14(2). Accordingly I reject his submission on the third issue.
53. Before I conclude, I cannot forbear to make one comment on one part of the procedures adopted by the Council and the Review Board. This relates to the exclusion of Mr Godwin from the Review Board hearing on 6th January 1998 in respect of Mr Fogg's application. It was a point taken before the judge, and one with which he had some sympathy, although he rejected it as a ground for finding in favour of Mr Godwin. I fully accept that in the light of the definition of "person affected" in Regulation 2(1), until the Council determines that an overpayment is recoverable from the landlord, the landlord is not a person affected and so does not have the rights conferred on a person affected by Regulation 82. But given that the landlord is the person to whom the overpayment was made and that the claimant of housing benefit is likely to be a person of limited means, the strong likelihood must be that, if the Council succeeds at the hearing of the claimant's application before the Review Board, it will seek to recover the overpayment from the landlord. In reality, though I accept not as a matter of statutory definition, the landlord is very much a person affected, and it seems to me regrettable that the Review Board should have taken the line that the landlord ought to be excluded from the hearing of the claimant's application. Once a Review Board has decided the issue of fact as to whether a claimant is occupying particular tenanted premises as his home, there may well be a reluctance for a Review Board, considering a subsequent application by a landlord from whom the overpayment is sought, to arrive at a different conclusion on precisely the same issue of fact. Indeed, one wonders why both applications could not be heard at the same time. But if that is not possible or is considered undesirable by the Council, I would strongly urge that the landlord not be excluded from the claimant's hearing.
54. However, for the reasons which I have endeavoured to give, I would dismiss this appeal.
55. LORD JUSTICE CHADWICK: I agree.
56. The claim in this action is to recover from the defendant Council the sum of £1,926 which, it is said, is due to the claimant, Mr Godwin, by way of housing benefit in respect of a Mr Kenneth Clarke. The defence to that claim is that the Council is entitled to recover an amount equal to that sum from the claimant by virtue of Regulation 101(1)(b) of the Housing Benefit (General) Regulations 1987 (SI 1987 No.1971, as it stood before substitution by SI 2001 No. 1190) on the grounds that: (i) there had been an overpayment of housing benefit in that amount in respect of a Mr Carl Fogg within the meaning of Regulation 98; (ii) the overpayment was a recoverable overpayment by virtue of regulation 99; and (iii) the claimant, Mr Godwin, was the person to whom the overpayment had been made. The Council contends, further, that the right to recover from the claimant an overpayment in respect of benefits payable in respect of Mr Fogg could be exercised by deduction from benefits payable by the Council to the claimant in respect of Mr Clarke - see section 75(5)(c) of the Social Security Administration Act 1992.
57. The claimant's response to that defence was, in effect, first, that the procedure adopted by the Council and the Housing Benefit Review Board - leading to the determination that there had been a recoverable overpayment which could be recovered from him - was flawed. Second, that it was a necessary precondition to the right to recover by deduction from benefits payable in respect of Mr Clarke that a notice of determination be given under paragraph 14(2) in Schedule 6 to the Regulations; and that no sufficient notice had been given.
58. In my view, there is no substance in the first of those points. I accept that, if the judge had been persuaded that the procedure which had led to the determination had been so flawed that substantial harm had been done to the interests of the claimant, the judge could have reached the conclusion that the Council had not made good its contention that it was entitled to recover an overpayment from him. If so, the claimant's claim for payment of housing benefit in respect of Mr Clarke would have been entitled to succeed, on the basis that the Council's defence had not been made out. But the judge was not so persuaded; and, for the reasons given by my Lord, Peter Gibson LJ, he was plainly entitled to take that view.
59. The second point, therefore, has to be approached on the basis that the Council was entitled to recover the amount of the overpayment from the claimant. The complaint, then, is confined to the failure to give a notice of determination in respect of the decision to do so by a deduction from benefits payable in respect of Mr Clarke. But there is nothing to suggest that the Council was not entitled to take that decision; and it is plain that the Council did so. Having taken that decision, I can see no reason why - whether or not the Council had given notice of determination in accordance with paragraph 14(2) to Schedule 6 -the Council could not have been entitled, in legal proceedings brought against it by the claimant for payment of housing benefit in respect of Mr Clarke, to raise by way of counterclaim - if not by way of set-off - its entitlement to deduct the amount of the overpayment in respect of Mr Fogg.
60. For those reasons, and for all the reasons which my Lord Lord Justice Peter Gibson has given, I too would dismiss this appeal. But I should not leave the matter without specifically associating myself with the observations of my Lord in relation to the appropriate procedure to be followed where a council is minded to recover an overpayment from a landlord.
61. LORD JUSTICE CLARKE: I agree that the appeal should be dismissed for the reasons given by Peter Gibson LJ and Chadwick LJ. I too agree with the opinions expressed by each of them at the end of their respective judgments. The only point which has given me some concern relates to the reasons given by the Review Board for its decision on 30th July 1998.
62. In his skeleton argument Mr Stagg, who did not appear before the judge, submitted that in reaching its decision, the Review Board failed to follow the correct procedure in that it failed to decide the question whether Mr Fogg was in fact resident at the appellant's property afresh, but confined itself to a review of the decision of the Board on 6th January 1998. In Mr Stagg's oral submissions he further submitted that no proper or sufficient reasons were given for the decision of the Review Board on 30th July 1998.
63. The authorities referred to by Peter Gibson LJ show that insofar as these are matters for the county court, the correct approach in the county court was to consider whether the Council failed to comply with the appropriate procedure, and, if so, to consider whether any substantive harm or significant prejudice had been suffered by the landlord as a result.
64. As to the point set out in Mr Stagg's skeleton argument, to my mind the terms of the decision of 30th July 1998, which have been set out by Peter Gibson LJ, show that it cannot succeed. The Board made a clear finding of fact that the appellant "was not occupying The Copper Kettle, 624-632 Bacup Road as his home during the period in question". That finding was reached after hearing oral evidence and considering evidence in writing. The Board did not simply review the decision of 6th January 1998, but made findings of fact of its own on the basis of all the material before it.
65. I turn briefly to the point made orally. I accept the submission that the reasons for the decision are not set out in any detail by the Board. Even though a Review Board need not spell out its reasons in any great detail, it would, I think, have been much better if it had spelt them out more fully than it did. However, I agree with Peter Gibson LJ that it must have been plain to the appellant that the reason why he lost was that the Board concluded that Mr Fogg was not living at the property as his home and that the Board did not accept the evidence of the appellant and his witnesses to the contrary.
66. However, even assuming that the Board ought to have given more reasons than it did, in order to succeed before the judge the appellant would have had to show that such a failure caused him substantive harm or significant prejudice. It is plain from the judge's judgment that the main point of objection before him was that the appellant was excluded while witnesses were giving evidence. I do not wish to add anything to the judgment of Peter Gibson LJ on that question. It is to my mind plain that the appellant failed to show any substantive harm or significant prejudice as a result.
67. Is it is, I think, clear that the point which I am now considering was touched on only comparatively briefly before the judge. The judge said this with regard to it:

"(6) Next, Mr. Palmer criticized the form of the Council's decision. It did not record the names of witnesses or set out the reasons in detail. Again, in so far as that is the valid criticism, it does not detract from the decision itself."

68. In reaching that conclusion the judge had had the benefit of evidence on both sides. That evidence included the evidence of Mr O'Donnell, who represented the appellant before the Review Board, and the evidence of Mr Coit, who represented the respondent Council. Thus, insofar as the appellant wished to rely upon any failure by the Board to explain its reasons, in the light of the evidence which was in fact before it, the appellant no doubt put relevant evidence before the judge through Mr O'Donnell and indeed through the appellant himself. The appellant has not put a transcript of the evidence before the judge before us, but there is no suggestion in Mr O'Donnell's statement that the Board gave insufficient reasons in the light of the evidence in fact adduced before the Board.
69. In these circumstances, there is no sensible basis upon which this court could properly hold that the judge was wrong in holding that insofar as the Board could validly be criticised for not recording the names of witnesses, or for not setting out the reasons in more detail, that does not detract from the decision itself. That is especially so given the fact that, as Peter Gibson LJ has indicated, the appellant did not make it clear to the judge that he suffered substantive harm or significant prejudice as a result of any failure in this regard.
70. For these reasons, as well as those given by my Lords, I too would dismiss this appeal.
Order: Appeal dismissed with costs subject to detailed assessment.