CH/3586/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
Formal decision

1.	The decision of the tribunal made on 8 August 2007 that overpayments of housing benefit (“HB”) and excess council tax benefit (“CTB”) are recoverable from the claimant is erroneous in law. I allow the appeal and set aside the decision. I remit the case for re-hearing in accordance with the directions given below. 

Nature of appeal

2.	The tribunal decided that the claimant was not entitled to HB from 14 November 2005 to 5 November 2006 and CTB from 14 November 2005 to 31 March 2007 on the ground that she had been absent from home for more than 13 weeks, and that overpayments of HB in the total sum of £3714.37 and excess CTB in the total sum of £1390.73 are recoverable from her.

3.	The claimant appealed against the decision on recoverability, but not the decision on entitlement, accepting that there had been overpayments. The grounds of appeal, in summary, are that the tribunal failed properly to deal with the issue as to whether the overpayment of HB and excess CTB were caused by official error. The Commissioner granted leave because the tribunal did not deal with the issue of official error. The respondent does not support the appeal.

Relevant factual background

4.	The claimant is a woman who has attained the qualifying age for state pension credit. At all material times she was the tenant of a council flat in the respondent’s area. The management of her flat and tenancy was the responsibility of the respondent’s relevant district housing office. Since May 2003 the claimant had been in receipt of HB and CTB. The administration of these benefits was the responsibility of the respondent’s benefits service, which was a different department to that of the housing offices. None of the claim forms or notifications of the original awards in respect of the period to which the overpaid HB and excess CTB are on the file.

5.	   On 13 November 2005 the claimant went to Ghana. Her case to the tribunal was that when she went to Ghana she had intended to stay for about 8 weeks, but after she had arrived she found that for a number of different family, cultural and medical reasons she had to, and did, stay in Ghana until 22 October 2006. It was also her case that   either she or her ex-husband informed the relevant housing office on 4 occasions during the period that she was abroad that she was in Ghana. She gave the following details of these occasions: first, on 19  January 2006 her ex-husband visited the housing office, paid off her then arrears of rent, and explained to the officer  why she was  in Ghana; second, after that visit and before early March the claimant herself  telephoned the housing office from Ghana to notify them that she would need to stay in Ghana for longer, and told the office that she would inform them as to her return to  United Kingdom; third, on 3 March 2006  her ex-husband visited the housing office again, paid off further rent arrears and explained her why she remained in Ghana; and fourth, on 23 June 2006 her ex-husband spoke to a named officer within the housing office, paid off part of the then rent arrears, explained the reasons for the claimant having to remain in Ghana, and informed the officer that she intended to return in July/August 2006. Nothing more is known about these visits and/or conversations, including their exact purposes and as to what, if anything, the officers of the respondent’s involved said or did when given the information, other than that the claimant in oral evidence to the tribunal stated that the officer to whom she spoke on the telephone told her that her housing manager would be informed.

6.	   On or before 17 October 2006 in circumstances which are not clear from the file, a housing investigation officer who, it appears, had responsibility for investigating whether council accommodation was being properly occupied, telephoned the claimant’s daughter, who was apparently living in the claimant’s flat, and was told by her that the claimant had gone to Ghana about a year ago and was expected back in about two weeks. On 17 October 2006 the investigation officer emailed this information to a member of the respondent’s benefits investigation team within the benefits service of the respondent, because, in her words, benefits had continued to be paid and she was sure that the benefits service  were not aware the claimant had been abroad. On 30 October 2006 the recipient of the email latter passed the information in the email to another officer within the benefits service, and asked for the claimant’s benefits to be suspended and the claimant to be written to for further information. By letter dated 1 November 2006 the benefits service notified the claimant that payments of HB and CTB had been suspended because of the information that the claimant had gone abroad, and requested further information. The claimant provided some further information. By letter dated 15 November 2006 the benefits service informed the claimant that her HB and CTB had been cancelled with effect from 14 November 2005. 

7.	   By a further letter dated 15 November 2006 the benefits manager   notified the claimant that overpayments of HB and CTB had occurred which were recoverable from the claimant. In relation to HB, the respondent stated that an overpayment totalling £3714.37 in respect of the period from 14 November 2005 to 5 November 2006 had occurred because the claimant was expected to be absent from home for more than 13 weeks, and was to be recovered because the claimant did not inform the benefits service of her change in circumstances when they occurred. In relation to CTB the letter stated that a total overpayment of £1390.73 in respect of the period from 14 November 2005 to 31 March 2007 had occurred because the claimant had been expected to be absent from home for more than 13 weeks. In relation to that part of the overpayment, which related to the period from 14 November 2005 to 12 November 2006 the letter stated the overpayment was because the claimant had not informed them of her change in circumstances at the time they occurred. In relation the overpayment from 13 November 2005 to 19 November 2006 the letter stated it was recoverable because, although an error had occurred, the claimant would have known that too much benefit was being paid. In relation to the overpayment from 20 November 2006 to 31 March 2007 it was stated to be recoverable because payments were made in advance.

8.	   By letter dated 11 December 2006 the claimant informed the respondent that she wished to appeal against the entitlement and overpayment decisions, and also requested the respondent to reconsider the decisions, on the grounds, in summary, that she was entitled to the benefits and that she had been made every reasonable effort to keep the housing office informed of her stay in Ghana (setting out the actions which I summarized in paragraph 5 above). By letter dated 11 January 2007 the respondent’s benefits manager notified the claimant that the decisions of 15 November 2006 had been reconsidered but not changed.  

The hearing before the tribunal, its decision and reasons

9.	  The appeal was determined after an oral hearing. The claimant and her ex- husband attended. The claimant was not represented at the hearing, but written submissions on her behalf by the welfare benefits unit of the Camden CAB had been provided to the tribunal. In relation to the overpayment and recoverability decisions it was submitted that the overpayments were not recoverable because they were caused by official error in the form of the failure of the respondent to act on the information provided to the housing department by the claimant and her ex-husband about absence from home.

10.	   Both the claimant and her ex-husband gave oral evidence. According to the record of the proceedings, the claimant said, amongst other things, that when she telephoned the housing office from Ghana, she told them that she did not know how long she would be in Ghana, and was told that her housing manager would be informed. Her ex husband is recorded as having told the housing department of the changes, but not the benefits department. The note also records his evidence that “everyone knew”.

11.	  The respondent’s case to the tribunal was set out in its written submissions and in relation to the recoverability of the overpayments was simply to the effect that as the claimant was not entitled to HB and CTB in respect of the overpayment periods the overpayments were recoverable.

12.	  The tribunal on the day of the hearing issued a joint decision notice and statement of reasons. Its decision confirmed the entitlement and overpayment/recoverability decision made on 15 November 2006. In its statement of reasons the tribunal identified the issue as being whether the claimant was entitled to HB and CTB in respect of the periods in issue. It then  made a number of findings of fact, including the following:-

“1. [The claimant] has been in receipt of housing and council tax benefit since 26.5.03……..
12. At various times she and her ex-husband contacted the housing office and told them she was in Ghana.
13. The housing office deals with the management of council properties.
14. At no time did either she or her husband advise the housing benefits office that she was in Ghana.
15. The housing benefit office is responsible for housing and council tax benefits claims.”

13.	The tribunal then set its reasons for its decision, the first part of which was addressed to the entitlement issue.  In relation to recoverability, the following parts of the reasons are relevant:
“She has a long history of benefit and it is reasonable to come to the conclusion that she must be aware of the need to notify changes of circumstances.
She argues that she told the housing office of her stay in Ghana and assumed that this was sufficient notification to the benefits section as she thought they were the same. In view of her long history of claiming benefit I find it highly improbable that she did not know the difference between the housing office, which deals with the management of council property, and the benefits office where the claims are processed.
In any event the duty lies with her to inform the relevant department and this she failed to do”

The relevant law

14.	At all material times there was a statutory obligation on the claimant to report changes of circumstances which took place during the awards of HB and CTB and in particular any absence from the dwelling for a period which exceeds, or is likely to exceed, 13 weeks. For the period of the overpayment up until the 5 March 2006 the duties were imposed respectively by regulation 75 of The Housing Benefit (General) Regulations 1987 and regulation 65 of The Council Tax Benefit (General) Regulations 1992 as modified by The HB and CTB (State Pension Credit) Regulations 2003. From 6 March 2006 the duties were imposed respectively by regulation 69 of the consolidating HB (Persons who have attained the qualifying age for state pension credit) Regulations 2006 (“the 2006 Regulations”) and regulation 59 of the CTB (Persons who have attained the qualifying age for state pension credit) Regulations 2006. As the provisions, so far as material to this case,  are for all practical purposes the same, I shall for convenience refer only to the  regulation 69 of 2006 Regulations which expresses the duty as follows:-
“Subject to paragraphs (3) and (5) to (7), if at any time ….during the award of housing benefit, there is a change of circumstances which the claimant……………might reasonably be expected to know might affect the claimant’s right to, the amount of or the receipt of housing benefit, that person shall be under a duty to notify that change of circumstances by giving notice to the designated office.”

15.	“designated office” is defined  to mean

“the office designated by the relevant authority for the receipt of claim to housing benefit –
(a)	by notice upon or with  a form approved by it for the purpose of claimant housing benefit;  or
(b)	 by reference upon or with such a form to some other document available from it and sent by electronic means or otherwise on application and without charge; or
(c)	 by any combination of the provisions set out in paragraphs (a) and (b) above..” 

16.	Paragraphs (3), (5) and (7) of regulation 69 of the 2006 Regulations are not material, but paragraph (6) is. It provides, to the extent material, that :-
“A person on housing benefit who is also on state pension credit must report-…..
(c) any absence from the dwelling which exceeds or is likely to exceed 13 weeks”

17.	The relevant statutory provisions relating to the recoverability of overpayments of HB or excess CTB are set out respectively in the two sets of Regulations relating to HB and CTB for those who have attained the qualifying age for state pension credit. Again as the provisions in each set of Regulations are to the same effect, I shall refer only to regulations relating to HB.

18.	Regulation 81 of the 2006 Regulations provides so far as material:

“	“(1) Any overpayment, except one to which paragraph (2) applies shall be recoverable.
(2)Subject to paragraph (4) [which is not material to this case] this paragraph applies to an overpayment caused by an official error where the claimant or a person acting on his behalf or any other person to whom the payment is made could not, at the time of the receipt of the payment or any notice relating to that payment reasonably have been expected to realise that it was an overpayment.
(3) In paragraph (2), “overpayment caused by official error” means an overpayment caused by a mistake made whether in the form of an act or omission by-
(a)	the relevant authority;
(b)	an officer or person acting for that authority;
(c)	an officer of –
(i)	The Department of Work and Pensions; or
(ii) Revenue and Customs,
acting as such; or
(d) a person providing services to the Department of Work and Pensions or to the Commissioners of Her Majesty’s Revenue and Customs,
where the claimant, a person acting on his behalf or any other person to whom the payment is made, did not cause or materially contribute to that mistake, act or omission.”

19.	“relevant authority” is defined to mean “an authority administering housing benefit”

Contentions of the parties on this appeal

20.	In the grounds of appeal the claimant’s representative contends that the tribunal erred in law in three respects. First, its decision was based in part at least on a misinterpretation of the law: namely, that a failure by the housing department of a local authority to pass information on to the department which administers housing benefit was not capable of being an official error. It is argued that the reference to an omission by a “relevant authority”, as distinct from a department within that authority, encompasses the authority as whole and can include a failure by one department of the authority to pass on information to another department of the authority. Second,  the tribunal failed to address the claimant’s case in the written submissions on her behalf that, founded on this interpretation of the Regulations, the failure of the housing office to pass on the information it received about the claimant’s absence was an official error which caused the overpayment. Third, the tribunal failed to make any findings as to whether there was an official error, whether that error caused the overpayment, and, if it did, whether the claimant could have reasonably been expected to realise she was being overpaid. Fourth, in the absence of such findings, the reasons given by the tribunal for its decision that the overpayments were recoverable are inadequate.

21.	The respondent’s submissions in response can be summarized as follows. First, the term relevant authority, properly construed, refers only to the department within a local authority that administers housing benefit. The documentation in the file shows clearly that the address to which information affecting HB should be sent is the benefits service. Second, if the correct interpretation were the wider one contended for by the claimant and in consequence a claimant could satisfy the obligation to inform the authority of change in circumstances by informing any employee of the respondent – for example a parking attendant or lifeguard at a swimming pool - it would render the effective and efficient processing of HB and CTB claims impossible and would impose unacceptable burdens on all the respondent’s employees. Third, the tribunal made adequate findings of fact and gave adequate reasons for its decision. 

22.	The claimant’s representative in response makes the additional point that there is support for his interpretation of the meaning of relevant authority in paragraph 37 of the decision of the Commissioner in CH/2321/2002 where in relation to the issue as to whether there had been overpayments and in circumstances in which the claimants had been acting under the guidance of both the social services department of the respondent council and the Benefits Agency the Commissioner observed:
“If that is in fact so, consideration should be given to whether any official error by the Council (and not merely the housing benefit department) and/or the Benefits Agency caused the overpayment”.

Errors of law

23.	I accept the broad thrust of the submissions on behalf of the claimant to the effect that the tribunal erred in law by failing to properly consider the claimant’s case that the overpayments of HB and excess CTB were caused by official error of the housing office in failing to pass on the information given to it that the claimant was in Ghana. In my judgement, the tribunal erred in two principal respects.

24.	Its first principal error was its failure to adequately  investigate,  consider, make findings and reach a conclusion as to whether the alleged omission of the housing office to pass on information to the benefits service that the claimant was in Ghana during the material period amounted to an official error for purposes of regulation 81 (3) of the 2006 Regulations. In particular, the tribunal should have investigated and made findings of fact as to
(i) the purpose or purposes of the claimant and/or ex-husband in informing the housing office that the claimant was in Ghana;
(ii) whether the purpose or purposes were declared to the housing office;
(iii) what, if anything, officers within the housing office told the claimant or ex-husband would be done with the information they had been given;
(iv) whether, and, if so, what arrangements existed at the material time for information received by the housing office to be further investigated or to be passed on to the benefit service, bearing in mind the evidence that the information was  passed onto the benefits service in October 2006;
(v) when, and the circumstances in which, the housing investigation officer came to investigate the claimant’s absence, and why, if it was not investigated until October 2006, it was not investigated earlier. 

25.	In the light of these findings, the tribunal should then have considered and determined whether (1)  there was any mistake in the form of an act or omission by officers within the housing office  and, if so,  (2) whether it was by a person who fell with the ambit of  sub-paragraphs (a) to (d) in paragraph 3 of the regulation. 

26.	As to (1), to justify a conclusion that a mistake had been made, it would not be sufficient to found such a conclusion on the mere fact that information given to the housing office had not been passed to the benefits service. The tribunal would need to be satisfied that either that the claimant on the evidence had a reasonably based expectation that the information would be passed onto the benefits service – for example, because she was told, or could reasonably infer, that this would be the case – or that within the housing office internal arrangements or practices  existed by which information potentially relevant to entitlement to HB and CTB was to be passed to the benefits service, and that in this case those arrangements or practices had not been followed. 

27.	As to (2), if there was a mistake, it would, in my judgement, have been by a person falling with either sub-paragraph (a) or (b), and I reject the submissions by the respondent to the contrary for the following reasons. 

28.	First, I see no justification for construing the term relevant authority, which in its ordinary meaning is wide enough to embrace any part of the authority, in a way which confines it to one department within the authority. In particular, the statutory definition of “relevant authority” does not justify such a restriction: its purpose, in my opinion, is to limit the term to authorities administering HB, as distinct from authorities, like shire counties, who do have these functions. Further, if the intention of the secondary legislation had been to limit the term in the way suggested by the respondent, it would have been easy to do so expressly. In this regard, I note the contrast between the absence of a restrictive definition of the term relevant authority with the deliberately restrictive way in which the separate duty imposed on claimants to report change of circumstances by regulation 69 of the 2006 Regulations the legislation is drafted so as to require the claimant to report changes not to the authority generally, but to the designated office within the authority as defined in the regulations. I also draw support from the fact the Commissioner in CH/2321/2002 came to the same conclusion as to the ambit of the term relevant authority.

29.	Second, the respondent’s contentions seem to me to wrongly conflate and confuse the separate questions on the one hand of the meaning of relevant authority in the context of official error in regulation 81(3) and on the other hand the question as to the nature and extent of the obligation of the claimant under regulation 69 to report changes of circumstances.  Relevant authority in the context  of regulation 81 (3), properly construed as explained above, does not have the effect suggested by the respondent of changing the obligation on claimants to report change of circumstances only to the office designated by the authority for receiving claims for HB. That obligation remains and it would be a breach of that obligation to report changes of circumstances to a department of the authority which was not the designated office. Further, interpreting relevant authority in the way I have done, would not mean, as the respondent argues, that a claimant could rely axiomatically on official error where he has reported change of circumstances to, say, a parking attendant because a mistake in such circumstances could only be committed in the much more limited circumstances I have outlined in paragraph 26 above, and because it would remain necessary for the claimant to show that the overpayment was caused by any such mistake rather than by the failure to report the change of circumstances to the benefits service in breach of regulation 69 of the 2006 Regulations.

30.	The tribunal’s second principal error was its failure to consider and determine whether either the overpayments of HB and/or excess CTB were caused by a wholly uninduced official error or was rather the result of the claimant’s own failings, here her failure in breach of duty to inform the benefits service of her change in circumstances. This issues should be approached by posing the broad common sense question as to what was the substantial cause of the overpayment: see R (Sier) v Cambridge CC HBRB [2001] EWCA Civ 1523 per Simon Brown LJ at paras 30-31, as explained in CH 3083/2005 para 38.

Remission to the tribunal and directions

31.	As the tribunal did not adequately investigate, and did not make adequate findings in relation to, the claimant’s case that the overpayments were caused by official error, I have no alternative but to remit the case to a differently constituted tribunal for re-hearing.

32.	The tribunal will need to consider all issues afresh. In relation to the claimant’s case that the overpayment were caused by the respondent’s official error, and subject to dealing with any new issues which may be raised, the tribunal will need to investigate and make findings as to the matters set out in paragraph 24 above. In the light of those findings, it will need to determine whether the housing office or officers within it made a mistake or mistakes, applying the approach I outlined in paragraph 26 above. If it finds that a mistake or mistakes were made by the housing office or officers, I direct the tribunal to conclude  that such mistakes were official errors for the purpose of all relevant regulations, for the reasons explained in paragraphs 27 -29 above. The tribunal will then need to determine whether all or parts of the overpayments or excess benefit were substantially caused by official error or by any failure on the part of the claimant to report the change in her circumstances by applying the approach  in paragraph 30 above. If the tribunal were to determine that all or parts of the overpayment were substantially caused by official error, the tribunal will need to consider and determine whether at the time of the  relevant times the claimant could not have been reasonably expected to realise that the payments were overpayment or excess benefit.

33.	The district chairman should direct the claimant and respondent to provide  further written submissions, supported by any available evidence, addressing, so far as they respectively can,  the issues of fact identified in paragraph 24 above. The respondent should also be directed to provide copies of the claim for, and awards of, HB and CTB relating to the relevant periods of overpayment. 

(signed on the original)				Christopher Whybrow QC
		  Deputy Commissioner
			
		  27 March 2008