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[2009] UKUT 14 (AAC) (15 January 2009)

 


IN THE UPPER TRIBUNAL Appeal No. CH/2880/2007

ADMINISTRATIVE APPEALS CHAMBER

Before A Ramsay Judge of the Upper Tribunal

REASONS FOR DECISION

1. The claimant's appeal fails. The decision of the Swansea Tribunal given on 29 November 2006 (the tribunal) is not erroneous in point of law and accordingly I dismiss the claimant's appeal against its decision.
2. The claimant appeals with the leave of a judge of the Upper Tribunal. At the same time as the Upper Tribunal judge granted leave to appeal in this case, he refused permission to appeal in the associated income support overpayment case. The tribunal found that the Secretary of State for Work and Pensions had shown that from at least 31 January 2001 the claimant and her husband had lived together as members of the same household, and the claimant was therefore not entitled from that date to income support as a single person. It was seemingly not in dispute that the claimant's husband was in remunerative employment. As it was the Secretary of State's supersession decision of 25 May 2006 which led to the local authority decision, this means that the tribunal decision in respect of income support is determinative so far as the claimant's income for housing benefit and council tax benefit are concerned. On the basis of the DWP supersession decision, the local authority superseded housing benefit entitlement for the period 18 July 2005 to 29 May 2006, and council tax benefit for the period 18 July 2005 to 1 April 2007.
3. The First-tier Tribunal judge produced a statement of reasons for the tribunal decisions which dealt with both the housing benefit and council tax appeals, and the income support appeal. The refusal of leave to appeal in respect of the income support appeal means that I do not need to consider in detail whether the factual basis of the local authority's supersession decision was correct. Having considered the detailed statement of reasons, which refers to evidence from tax records, credit card applications, a credit purchase agreement in respect of a car jointly signed by the claimant and her husband, an observation log, the absence of any alternative address for the husband, the husband giving as his address to a custody sergeant the address occupied by the claimant, and a strong inference that the local authority's Social Services Department considered that the claimant was cohabiting with her husband during the relevant period, I am satisfied that there was more than ample evidence upon which the tribunal could conclude that the local authority had discharged the burden of establishing grounds for supersession.
4. Leave to appeal was granted in this case only because the statement of reasons did not deal with the calculation of the overpayments of housing benefit and council tax benefit, and apparently had failed to consider whether there was any potential entitlement to benefit on the basis of the husband's actual income. I deal with those points below. However, given the grounds of appeal drafted by the claimant's former representative, it is right that I should say something about these.
5. The first ground of appeal was that the tribunal, in dealing with the claimant's appeals, had failed to take into account evidence of the claimant's mental health problems. However sympathetic one might be to the claimant's health problems, as a question of law they are not capable of affecting the question of whether or not the claimant was a member of the same household as her husband. The claimant and her husband were married, and therefore the relevant test, set out in section 137(1) Contribution and Benefits Act 1992 is whether she and her husband were members of the same household. On cogent evidence the tribunal found that she was. Nor could the question of recoverability of overpaid housing benefit or council tax benefit be affected by whether or not the claimant was suffering from mental health problems. The only circumstance under which such an overpayment will not be recoverable is where the overpayment has occurred by reason of narrowly defined "official error". Clearly, this was not such a case.
6. The representative also raised the question of the lack of any evidence of a financial relationship. A financial relationship might be relevant to whether or not a man and woman who were not married to one another are living together as husband and wife. It has no relevance to whether or not a husband and wife living in the same household should be treated as a couple. The statue provides that they must be so treated.
7. The other points raised as grounds for appeal related to the tribunal's assessment of the evidence before it. These were questions of fact for the tribunal, and providing that the tribunal had taken account of all the evidence before it, and not failed to examine relevant evidence, its findings of fact do not give rise to an error of law.
8. I return, then, to the grounds on which the Upper Tribunal judge granted leave. So far as I can see, the question of calculation of the overpayment was not raised as a question for the tribunal. Section 12(8)(b) Social Security Act 1998 provides that a tribunal need not consider any issue not raised by the appeal. Yet in a challenge to recoverability of an overpayment, it is wise for a tribunal always to satisfy itself as to the calculation of that overpayment, and in particular, that the local authority has taken steps to calculate any amounts which it might be appropriate to offset from an overpayment under the provisions of regulation 104 of the Housing Benefit Regulations 2006 and regulation 89 of the Council Tax Benefit Regulations 2006. These are in virtually identical form, and therefore I will set out only the relevant portion of the Housing Benefit Regulations. Regulation 104(1) provides as follows:

"… in calculating the amount of a recoverable overpayment, the relevant authority shall deduct any amount of housing benefit which should have been determined to be payable in respect of the whole or part of the overpayment period –

(a) on the basis of the claim as presented to the authority;

(b) on the basis of the claim as it would have appeared had any misrepresentation or non-disclosure been remedied before the decision; or

(c) on the basis of the claim as it would have appeared if any change of circumstance … had been notified at the time that change occurred."

9. If one member of a couple is in remunerative work, that is fatal to any application for income support. However, that is not the case for housing benefit and council tax benefit. The actual income of the couple will be taken into account, an applicable amount applied against it, and a taper is applied against any remaining income. The application of this formula means that even in the case of those in remunerative employment, there may still be an entitlement to housing benefit and council tax benefit.
10. I see from page 17 of the tribunal bundle that the local authority wrote to the claimant on 1 June 2006 asking for her husband's full name, date of birth and national insurance number, and also for details of the claimant's own and her partner's income and capital from 13 July 2005 so that any entitlement might be calculated. The claimant did not provide that information. Instead, she appealed the decision that she and her husband were living together. Nonetheless, the local authority wrote again on 28 June 2006 (see page 27 of the tribunal bundle) asking for evidence of her husband's earnings. Accordingly, I do not accept that the local authority had not complied with regulations 104 Housing Benefit Regulations and  89 Council Tax Benefit Regulations. I understand that as a result of leave to appeal having been granted in this case, the local authority repeated its invitation to the claimant to supply evidence of her husband's earnings. Where this is not supplied, the local authority is unable to apply the relevant offsetting provisions. However it is not what has happened since leave to appeal was granted which concerns me, but the evidence which was before the tribunal. Given the evidence in the tribunal bundle, I have no reason to doubt that the tribunal was satisfied that the local authority had made the appropriate attempts to obtain the information which would enable the offsetting provisions to be applied. The fact that the claimant decided not to provide this evidence does not change the fact that the local authority did take the appropriate steps to enable it to calculate any underlying entitlement.
11. The next question on which leave was granted was calculation of the overpayment, and the absence of an effective schedule. Local authorities, unfortunately, rarely produce a clearly identifiable schedule. However, that does not mean that a schedule was not in fact produced. On 28 June 2006 the local authority issued two separate letters to the claimant. One concerned housing benefit, and the other council tax benefit. Both showed the rate at which benefit had been paid, and set out the supersession decision which was in respect of each of the periods for which, in the authority's view, the claimant was not entitled to any amount of benefit. These letters are at pages 28 and 29 of the tribunal bundle. It is true that it takes use of a calendar and calculator to translate the weekly amounts of benefit paid into the sums said to be recoverable, but they add up to the amounts which were before the tribunal. The tribunal was not in error of law in confirming these amounts without a more detailed consideration. This is not a case where there were changes of circumstance week by week to take into account, or fluctuating income. The local authority's case, which the tribunal accepted, was simply that all of the benefits had been overpaid.
12. The local authority also produced details of further overpayment schedules which it had calculated from 5 February 2001 onwards. These are not questions which were before the tribunal, and therefore not issues for me, and I say nothing further about these. They are matters in respect of which the claimant has a separate right of appeal.
13. The "excess benefit" decision confirming council tax benefit was for a period ending 1 April 2007. The claimant queried how that could be the case. In CH/1384/2007 I explained how such a result comes about. An award of council tax benefit operates as a credit on a claimant's council tax account and to the extent of the award, satisfies the claimant's liability for council tax to the end of the relevant year. If this credit of council tax benefit were not removed, the claimant would remain overpaid. Regulation 83(1) Council Tax Benefit Regulations 2006 provides that any council tax benefit overpaid, save through official error, shall be recoverable, and even where the overpayment has been caused by official error (not a factor in the present appeal) where excess benefit remains credited after the date of the revised award, even that is recoverable under regulation 83(5). Therefore it is entirely right that the local authority has recovered the benefit which is awarded to the end of the financial year. I understand that the claimant has since, on a new claim, been awarded council tax benefit in respect of the latter part of the financial year, but that does not affect this principle. That is a new award, and unless the previous credit was removed by operation of regulation 83 in the way I have described, she would have been paid twice in respect of the period of the subsequent award.
14. Accordingly, although I think it is desirable that a tribunal in this situation should always specifically address the basis on which recoverable overpayments have been calculated, this was such a straightforward calculation, and not challenged on the claimant's behalf, that I do not accept that there was any error of law on the part of the tribunal in not more specifically addressing this.
15. For the reasons set out above the claimant's appeal is dismissed.

(Signed)

Mrs A Ramsay

Deputy Judge of the Upper Tribunal

(Date) 15 January 2009