Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CH/2551/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Decision:  The local authority’s appeal is dismissed.

 

 

REASONS FOR DECISION

 

Background

 

1. This is an appeal, brought by Hastings Borough Council with permission granted by Upper Tribunal Judge Howell QC, against a decision of the First-tier Tribunal whereby it allowed an appeal by the landlords (although the landlord’s agent was named as the appellant) against a decision that an overpayment of housing benefit amounting to £7,310 was recoverable from them as well as from the claimant.  The claimant had in fact died shortly before the hearing before the First-tier Tribunal but I do not think that either of the other parties or the First-tier Tribunal was aware of that at the time although the First-tier Tribunal had been aware that he was seriously ill.  The local authority does not know who the claimant’s next of kin are and does not propose to try to trace them or recover the overpayment from them.  Consequently, this case has proceeded with only the landlords resisting the appeal.  The Secretary of State has supported the local authority’s appeal in a short written submission but has not sought to be joined as a party.  The landlords seek an oral hearing only if the Upper Tribunal were minded otherwise to allow the appeal.  The local authority does not seek an oral hearing.  The case has been very thoroughly argued on the papers, both in the original grounds of appeal to the Upper Tribunal and then, on the points of law highlighted by Judge Howell when he granted permission to appeal, by Mr Rory Clarke of counsel for the local authority and Mr James Bowen of counsel for the landlords.  I am satisfied that the appeal can properly be determined without a hearing.

 

2. The case is one of a familiar type.  The claimant was entitled to housing benefit but the housing benefit was paid direct to the landlords.  The claimant then left the premises and ceased to be entitled to housing benefit but he did not inform the local authority with the result that housing benefit continued to be paid to the landlords until the local authority discovered that the claimant had moved.  The local authority decided that the overpaid housing benefit was recoverable from both the landlords and the claimant but, on appeal, the First-tier Tribunal held that it was recoverable only from the claimant.

 

3. The details of the case are perhaps less common in that the overpayment was made over a period of over 18 months, from 28 May 2007 to 18 January 2009, and the First-tier Tribunal found that, throughout that period, the landlords did not know that the claimant was no longer occupying the dwelling as his home.  It preferred the landlords’ evidence that the claimant had not informed them that he was leaving the property to the claimant’s written evidence that he had informed them.  It also accepted the landlords’ evidence that, because the dwelling was a one-bedroom flat in a property that had recently been refurbished, there was no reason for their agent’s maintenance team to have visited it on its own initiative or to inspect it before October 2008 and that, at that inspection, their agent had not suspected that the claimant had abandoned the property because the property had been let unfurnished and furniture and a television and refrigerator had been found there.  Cleaners responsible for cleaning the common parts had not reported any build up of post or other reason for suspecting that the claimant had moved.  The First-tier Tribunal not only found that the landlord believed that the claimant was still living in the property but also held that that belief was reasonable.  It may be noted that the landlords were represented by counsel before the First-tier Tribunal and one of them gave oral evidence, whereas the local authority neither attended nor was represented.  Given the size of the overpayment and the issues of fact that were apparent from the written evidence and submissions, the local authority’s absence is surprising.  (It appears from the First-tier Tribunal’s file that a judge indicated that a presenting officer should attend on behalf of the local authority but, as far as I can tell, that indication does not appear to have been conveyed to the local authority.)

 

4. Section 75(1) and (3) of the Social Security Administration Act 1992 provides, so far as is material –

 

“75.–(1)  …, any amount of housing benefit determined in accordance with regulations to have been paid in excess of entitlement may be recovered … by the authority which paid the benefit.

…

  (3) An amount recoverable under this section shall be recoverable –

(a)  except in such circumstances as may be prescribed, from the person to whom it was paid; and

(b)  where regulations so provide from such other person (as well as, or instead of, the person to whom it was paid) as may be prescribed.”

 

5. Regulation 82(1) and (2) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 (SI 2006/214) provides, in its current form –

 

“82.—(1) For the purposes of section 75(3)(a) of the Administration Act (prescribed circumstances in which an amount recoverable shall not be recovered from the person to whom it was paid), the prescribed circumstance is—

(a)  housing benefit has been paid in accordance with regulation 76 (circumstances in which payment is to be made to the landlord) or regulation 77 (circumstances in which payment may be made to a landlord);

(b)  the landlord has notified the relevant authority or the Secretary of State in writing that he suspects that there has been an overpayment;

(bb) the relevant authority is satisfied that the overpayment did not occur as a result of any change of dwelling occupied by the claimant as his home;

(c)  it appears to the relevant authority that, on the assumption that there has been an overpayment—

(i) there are grounds for instituting proceedings against any person for an offence under section 111A or 112(1) of the Administration Act (dishonest or false representations for obtaining benefit); or

(ii)  there has been a deliberate failure to report a relevant change of circumstances contrary to the requirement of regulation 69 (duty to notify a change of circumstances) and the overpayment occurred as a result of that deliberate failure; and

(d)  the relevant authority is satisfied that the landlord—

(i) has not colluded with the claimant so as to cause the overpayment;

(ii)  has not acted, or neglected to act, in such a way so as contribute to the period, or the amount, of the overpayment.

  (2) For the purposes of section 75(3)(b) of the Administration Act (recovery from such other person, as well as or instead of the person to whom the overpayment was made), where recovery of an overpayment is sought by a relevant authority—

(a)  subject to paragraph (1) and where sub-paragraph (b) or (c) does not apply, the overpayment is recoverable from the claimant as well as the person to whom the payment was made, if different;

(b)  in a case where an overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact (in either case, whether fraudulently or otherwise) by or on behalf of the claimant, or by or on behalf of any person to whom the payment was made, the overpayment is only recoverable from any person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made; or

(c)  in a case where an overpayment arose in consequence of an official error where the claimant, or a person acting on the claimant’s behalf, or any person to whom the payment was paid, or any person acting on their behalf, could reasonably have been expected, at the time of receipt of the payment or of any notice relating to that payment, to realise that it was an overpayment, the overpayment is only recoverable from any such person instead of, if different, the person to whom the payment was made.”

 

6. That version of regulation 82(2) is the third. It was substituted by regulation 5 of the Housing Benefit and Council Tax Benefit (Amendment) (No.2) Regulations 2008 (SI 2008/2824) with effect from 6 April 2009 for a previous version.  That previous version was itself substituted for the original version (which never came into force but reproduced earlier legislation) by regulation 6 of the Housing Benefit and Council Tax Benefit (General) Amendment Regulations 2005 (SI 2005/2904), as amended by paragraph 29(7) of Schedule 2 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (SI 2006/217), with effect from 10 April 2006.  The 2005 Regulations, as so amended, also inserted subparagraph (bb) into paragraph (1), with effect from 10 April 2006.  The 2009 amendment was made during the period of the overpayment in this case but, because paragraph (2)(a)(i) of the earlier version was almost identical to paragraph (2)(b) of the current version, the same point of law arises on both versions of the legislation and I therefore need not consider the applicability of the reasoning in R(H) 3/09 to the facts of this case.  Although the local authority’s submission to the First-tier Tribunal referred to the earlier version of paragraph (2), I will refer to the current version.

 

7. It is common ground, and the First-tier Tribunal accepted, that the landlords do not escape liability for the overpayment by virtue of regulation 82(1) because the condition in subparagraph (bb) is not satisfied.  It is also common ground, and the First-tier Tribunal accepted, that the overpayment was recoverable from the tenant by virtue of what is now regulation 82(2)(b) because it arose in consequence of the claimant’s failure to disclose to the local authority the material fact that he was no longer occupying the relevant dwelling as his home.  It was the local authority’s submission to the First-tier Tribunal that the overpayment was recoverable from the landlords under the same provision because the landlords had also failed to disclose to the local authority the material fact, which it said they knew, that the claimant was no longer occupying the dwelling as his home.  However, the landlords argued that the overpayment was not recoverable from them because there had been no failure to disclose on their part as they did not know that the claimant had ceased to occupy the dwelling as his home.  There was therefore no dispute between the parties before the First-tier Tribunal as to the material test.  The issue between them was whether or not the landlords knew that the claimant was no longer occupying the dwelling as his home.  The appeal was allowed because the First-tier Tribunal accepted the landlords’ case on that issue of fact.  (The local authority did submit that “it is reasonable to expect that a landlord make contact with their tenants who they are receiving benefit for to ensure that they remain resident at the property for which benefit is being paid” but it did not submit that there were any legal consequences of not doing so.)

 

 

The grounds of appeal

 

8. The local authority’s original grounds of appeal to the Upper Tribunal challenge the First-tier Tribunal’s findings of fact.  However, an appeal lies to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007 only on a point of law.  In R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, Brooke LJ gave “a brief summary of the points of law that will most frequently be encountered in practice”, which he identified as –

 

“(i) Making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”);

(ii) Failing to give reasons or any adequate reasons for findings on material matters;

(iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) Giving weight to immaterial matters;

(v) Making a material misdirection of law on any material matter;

(vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;

(vii)  Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.”

 

He added –

 

“Each of these grounds for detecting an error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

9. In the present case, none of the grounds of appeal, drafted by the appeals officer and a solicitor, has been put in terms that identifies an error of law of a type suggested by Brooke LJ.  Instead, the grounds seek to reargue the factual issues in the case.  That is not appropriate on an appeal confined to points of law.

 

10 The first ground argues that there was “no evidence that [the claimant] failed to disclose to [the landlords’ agents] that he had vacated the property”, which is not accurate.  One of the landlords gave oral evidence to that effect.  I accept that it is also true that the claimant’s written evidence was that he had informed the landlords that he was leaving the property.  However, that merely means that there was conflicting evidence.  The First-tier Tribunal resolved the conflict in favour of the landlord, largely because the claimant said he left a message on the landlord’s mobile telephone and the landlord said that the claimant did not have his mobile telephone number and, on the balance of probabilities, the First-tier Tribunal preferred the landlord’s evidence.  As the judge of fact, it was for the First-tier Tribunal to decide which evidence it preferred.  Its reasoning is challenged in the tenth ground of appeal on the basis that a mobile telephone number could have been obtained from the internet.  However, I do not consider that the First-tier Tribunal can be said to have erred in law in not dealing with an argument that was not advanced to it and is based on evidence that was not before it. 

 

11. The second, third and eleventh grounds of appeal allege that the First-tier Tribunal erred in recording as facts five matters that were in dispute.  However, that is to misunderstand the decision.  The First-tier Tribunal was obviously well aware that those points were in dispute.  What it set out were its findings of fact.  It was its function to resolve the disputes and decide, on a balance of probabilities, which evidence it preferred.  Lord Diplock pithily stated the consequence of doing so in Mallett v McMonagle [1970] A.C. 166 at 176:

 

“In determining what did happen in the past a court decides on the balance of probabilities.  Anything that is more probable than not it treats as certain.”

 

12. Grounds four to nine and twelve advance cogent reasons for reaching different conclusions on issues of fact from those reached by the First-tier Tribunal.  However, none of them raises a point of law.  It is not enough for an appellant on an appeal on a point of law to argue that there is another view that the First-tier Tribunal could have taken.  It must be demonstrated that the First-tier Tribunal made a finding unsupported by any evidence or that it took into account an immaterial consideration or refused to take into account a material consideration or reached an illogical or otherwise perverse finding or reached a finding by way of a flawed procedure or in some other way erred in law.  None of the grounds advanced comes close to demonstrating any such thing.  Nor does any of them suggest that the First-tier Tribunal’s reasoning was inadequate.  It was not bound to deal with every point that was raised and was certainly not bound to deal with every point that was not raised before it but the local authority now thinks should have been raised.  It had the function of deciding which apparent inconsistencies in evidence were significant and which were not and of weighing the evidence generally.  If the local authority wished to take the points it has now raised, it should have been represented at the hearing and been in a position to cross-examine the landlord and make its points in argument in response to the landlord’s evidence.

 

13. The final two grounds of appeal merely reiterate the local authority’s factual case.

 

14. I am not persuaded that any of these grounds of appeal demonstrates an error of law and I note that Judge Howell did not suggest otherwise when granting permission to appeal.  He raised two entirely different points. 

 

 

The construction of regulation 82

 

15. The first point raised by Judge Howell was whether regulation 82(2) really does relieve a landlord of all risk of liability in a case such as the present, given the strictness of the test in regulation 82(1).  The local authority’s answer to that question is “no”.  It submits, through Mr Clarke, that, in the present case, the overpayment is recoverable under section 75(3)(a), because the landlord does not fall within regulation 82(1), and that section 75(3)(b) and regulation 82(2) simply have no application.  Section 75(3)(b) and regulation 82(2) deal with the circumstances in which an overpayment may be recovered from a person other than the person to whom the over payment was made but not, it is submitted, the circumstances in which an overpayment may be recovered from the person to whom it was made.  Alternatively, the local authority suggests that, for the sake of consistency with paragraph (1), paragraph (2) of regulation 82 should be read so that “a landlord who is in receipt of housing benefit who carries out no checks at all and has no contact with his tenant until 18 months later should be considered someone who has contributed to the overpayment by neglecting to act by making the most basic checks to see whether the tenant remains resident.”  The landlords reply that section 75(3)(b) and regulation 82(2) do deal both with whether an overpayment is recoverable from the person to whom it was paid and with whether it is recoverable from anyone else and that regulation 82(2) cannot be construed as suggested.

 

16. The local authority’s first submission would require section 75(3) to be construed in a way that was rejected by a Tribunal of Social Security Commissioners in R(H) 6/06 at paragraph 51 of its decision.  The construction was regarded as tenable but (although this was not the reason for its rejection) it would have been inconsistent with the understanding of the draftsman of the 2005 Regulations as revealed through subparagraph (a) of the substituted paragraph (2) of what became regulation 82.  The reference in the opening words of the substituted paragraph (2) only to paragraph (b) of section 75(3) and not also to paragraph (a) shows that the draftsman of the 2005 Regulations clearly preferred the alternative construction that was subsequently adopted by the Tribunal of Commissioners and also by the draftsman of the 2009 Regulations.  On that construction, section 75(3)(b) by itself permits the making of regulations providing that an overpayment may be recoverable from someone else instead of the person to whom it was paid.  This means that there is an overlap between paragraphs (a) and (b) of section 75(3) because, as the Tribunal of Commissioners said at paragraph 52 of R(H) 6/06 –

 “where the Secretary of State makes regulations [under section 75(3)(b)] providing that an overpayment is recoverable from a prescribed person instead of the person to whom it was made, he is, in effect, providing for additional, but defined, circumstances in which the person to whom the payment was made is not liable to repay an overpayment.”

 

17. However, it appears that neither the draftsman of the 2005 Regulations nor the draftsman of the 2009 Regulations has recognised the implications of the overlap between paragraphs (a) and (b) of section 75(3).  If, as I think is the case in relation to the current legislation save where there has been an official error, it is intended that an overpayment should always be recoverable from someone else where it is not recoverable from the person to whom it was paid, that can be achieved by exercising only the power conferred by section 75(3)(b) and it is not necessary also to exercise the power conferred by section 75(3)(a).  It is necessary to rely on section 75(3)(a) only if it is intended that the overpayment should not be recoverable from anyone.  If, nonetheless, both powers are exercised in a case where it is intended that at least one person should be liable to repay the overpayment, the draftsman must take care to ensure that the separate provisions made under each of the two paragraphs are consistent with each other.  I therefore accept the landlords’ submission that regulation 82(2)(b) does apply in this case.

 

18. As originally drafted, regulation 82(2), made under section 75(3)(b), had the effect that, where an overpayment was paid to a landlord, it was recoverable from the claimant instead of the landlord only if the landlord fell within the scope of regulation 82(1), made under section 75(3)(a) (see R(H) 6/06 at 54 and 55).  The 2005 Regulations for the first time introduced a provision made solely under section 75(3)(b) under which an overpayment might be recoverable from a landlord in a case where the overpayment had been paid to the landlord.  However, the provision made under section 75(3)(a) was retained and amended.  That required there to be co-ordination between the provision made under each of the two paragraphs.

 

19. It is fairly clear from paragraphs 7.1 and 7.2 of the explanatory memorandum to the 2005 Regulations that was laid before Parliament – and is available with the statutory instrument on the www.legislation.gov.uk website – what the policy behind the amendments was.  Under the existing legislation, which was in the same terms as the original version of regulation 82, paragraph (1) was intended “to encourage landlords to report suspected fraud, such as claimants cohabiting or working whilst claiming”.  However, landlords were relying on paragraph (1) to avoid liability for overpayments in cases where claimants had left the property, as in the present case, and subparagraph (bb) was inserted by the 2005 Regulations for the express purpose of putting a stop to that.  At the same time, it was considered undesirable that, in cases that did not fall within the scope of paragraph (1), overpayments made to a landlord were recoverable from both the claimant and the landlord, because local authorities were exercising their power of recovery against landlords even in cases where the landlord was blameless.  (This was liable to occur because subparagraphs (b) or (c) severely limited the scope of paragraph (1).) What is now paragraph (2)(b) was inserted so that “overpayments caused by a change to the claimant’s personal circumstances, which the landlord could not possibly know about, should be recovered from the claimant rather than from the landlord”.

 

20. What the draftsman obviously did not appreciate was that introducing what is now regulation 82(2)(b) rendered the whole of paragraph (1) otiose and that in order to maintain the policy behind the new paragraph (1)(bb) it was necessary to provide that what is now regulation 82(2)(b) should not apply in a case where the overpayment was made to the landlord and occurred as a result of a change of dwelling occupied by the claimant as his home.  If it was considered that paragraph (1)(d)(ii) required a landlord to take positive steps to acquire knowledge about a tenant’s affairs in order to ensure that there was no overpayment and it was desired to maintain such a policy, it was similarly necessary to provide that what is now regulation 82(2)(b) should not apply if the overpayment was paid to the landlord and the landlord had acted or neglected to act so as to contribute to the period, or the amount, of the overpayment.

 

21. In these circumstances, there arises the question whether it is necessary, or possible, to construe regulation 82(2)(b) as being subject to those qualifications notwithstanding that there is no express provision to that effect.  This is effectively what the local authority suggests in its alternative submission, which can be read as submitting that it is at least possible to imply a qualification preserving the effect of paragraph (1)(d)(ii).  If that is possible, it would also be possible to imply a qualification preserving the effect of paragraph (1)(bb), which would clearly have the effect that the overpayment would be recoverable from the landlords in the present case.  (Collusion within the scope of paragraph (1)(d)(i) would probably involve a failure to disclose and so no equivalent qualification would be required and the explanatory memorandum to the 2005 Regulations shows that no qualification in terms of paragraph (1)(b) and (c) was intended.)

 

22. In construing legislation, it is a judge’s task to give effect to the intention of the legislator.  In ascertaining that intent, one can have regard to background material such as the explanatory memorandum but it is also essential to pay attention to the words the legislator chose to use in the legislation itself.  I am satisfied that it is not permissible to read in to regulation 82(2)(b) the qualification proposed by the local authority or any other qualification.  There are three reasons for this.

 

23. First, it would involve considerable violence to the language of the paragraph (2)(b).  Secondly, paragraph (2)(b) has hitherto been given its natural construction by the Upper Tribunal (see, for example, MP v London Borough of Greenwich (HB) [2012] UKUT 88 (AAC)) and the legislator has not, as far as I am aware, taken action to reverse those decisions.  It would be highly unsatisfactory to have conflicting decisions of the Upper Tribunal in this area of the law.  Thirdly, I cannot be sure as to exactly how the legislator would have qualified paragraph (2)(b) had he or she considered doing so.  There is a tension between the policies revealed in the explanatory memorandum which is not fully resolved in it.  On the one hand, there is a policy of exempting landlords from a liability to repay overpayments where they are innocent.  On the other hand, there appears to be a policy of requiring them to bear the risk of being required to repay an overpayment where a tenant has moved out of the property, even if they are not at fault in any way.  Moreover, it is not clear to what extent, if at all, paragraph (1)(d)(ii) expects landlords to act beyond their legal duties and to what extent the legislator might have wished to retain any such expectation in relation to paragraph (2)(b).

 

 

Failure to disclose

 

24. This brings me to the second issue raised by Judge Howell.  He asked whether  the First-tier Tribunal “was justified in this case in holding the landlord under no duty to make sure its tenant was in fact still at the premises, and had acted reasonably in not doing so over such an extended period”.  This is very similar to the point raised by the local authority’s alternative construction of the legislation, save that Judge Howell asks whether a landlord who fails to make adequate checks does fail to disclose a material fact that he or she ought to have discovered, whereas the local authority merely suggests that a failure to make adequate checks should be treated in the same way as a failure to disclose.

 

25. The language of misrepresentation and failure to disclose used in regulation 82(2)(b) is familiar in both social security law and insurance law.  In the social security context, those concepts have been considered by countless tribunals and courts concerned with the construction of section 71 of the 1992 Act and its predecessors.  It is now well established that a person cannot disclose, and therefore cannot fail to disclose, what he or she does not know and also that there is no failure to disclose if there is no legal duty to disclose (see B v Secretary of State for Work and Pensions [2005] EWCA Civ 929; [2005] 1 WLR 3796 (also reported as R(IS) 9/06)).

 

26. As to the legal duty to disclose in this case, the Secretary of State points to regulation 69(1) of the 2006 Regulations, which provides that –

 

 `“69.—(1) …, if at any time … during the award of housing benefit, there is a change of circumstances which the claimant, or any person by whom or on whose behalf sums payable by way of housing benefit are receivable, 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.

 

Paragraph 11 of Schedule 8 requires that a decision that payments may be made to a landlord must inform the landlord of his or her duties to disclose changes of circumstances and of “the kind of change of circumstances which is to be notified”.

 

27. Regulation 69(1) clearly imposes on a landlord a duty to inform a local authority if he or she knows that a claimant has ceased to occupy the relevant dwelling as his home, since that is obviously relevant to the claimant’s entitlement to housing benefit.  It equally clearly imposes on a landlord a duty to inform a local authority if he or she is aware of any other change of circumstances that he or she “might reasonably be expected to know” might affect the claimant’s entitlement to housing benefit.  The words “might reasonably be expected to know” refer not to whether the landlord might reasonably be expected to know of the change of circumstances but to whether he or she might reasonably be expected to know its materiality.  It imposes an objective test but in applying it regard would need to be had to what the landlord had been told in the notice issued under paragraph 11 of Schedule 8.

 

28. What, however, regulation 69(1) does not do is impose on a landlord any duty positively to seek out information relevant to claimants’ entitlement to housing benefit.  There may be good reasons for that, given tenants’ rights to quiet enjoyment and privacy.  It is one thing to encourage landlords to report information they acquire in the normal course of events, perhaps because a landlord lives in the same building as a tenant, but it is another to encourage them to snoop on their tenants.  A person may occupy a dwelling and be liable for rent even though he or she does not live there and is therefore not entitled to housing benefit and it may not always be immediately obvious when a person has ceased to occupy, or has even ceased to live at, an address.

 

29. It may well be that a person can be under a legal duty to disclose facts to a local authority notwithstanding that the duty is not imposed by any statutory provision.  It is noteworthy that, since it refers only to a change of circumstances, regulation 69 does not impose on a landlord a duty to disclose a fact that he or she knows made a claim for housing benefit fraudulent from the start but a duty to disclose such a fact might possibly be implied from the circumstances surrounding the acceptance of the payments.  However, I see no warrant in regulation 69 or under the general law for implying a duty to disclose facts of which one is unaware or to take active steps to discover facts so that they may be disclosed.  One has only to raise the questions of what those steps might be and how far such a duty might extend to appreciate that there might be difficulties with implying such an approach and, indeed, with the application of a provision such as regulation 82(1)(d)(ii).  Accordingly, I am satisfied that the First-tier Tribunal did not err in law in not finding the landlords to be in breach of any legal duty of disclosure in this case.

 

30. The local authority might, perhaps, have created a duty on the landlord by asking the landlord to provide specific evidence of the claimant’s continued residence, but it would have been easier for it to have approached the claimant itself.  It could significantly have reduced the amount of the overpayment had it ever asked the claimant to confirm that he still lived at the relevant address.  It sent him letters informing him of decisions but never asked him to reply.  A failure to reply would have been grounds for suspending payments to the landlords under Part III of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (SI 2001/1002) and a further failure to reply would have been grounds for terminating them.  Given that the claimant was the beneficiary of the award while living in the property and given that he would clearly have known where he was living and was under a duty to inform the local authority if he moved, requiring him to confirm from time to time his continued entitlement to the award would not have been unreasonable.

 

31. It does not follow from the lack of any duty on a landlord to take active steps to discover facts that an unusual failure by a landlord to realise that a tenant has ceased to occupy a dwelling as a home might not be relevant to the making of a decision as to whether an overpayment was recoverable from the landlord.  It might well cause the decision-maker to take a sceptical view of the landlord’s evidence and conclude that he or she has turned a blind eye to a fact that he or she knows but prefers to ignore.  The local authority in the present case has raised a number of powerful arguments for not believing the landlords and there are one or two other questions I would have asked had I been sitting in the First-tier Tribunal.  However, these sorts of issues are for the fact-finding tribunal and it is too late for them to be raised on an appeal to the Upper Tribunal.  In this case, the First-tier Tribunal, who actually heard evidence from one of the landlords, decided the case in their favour.

 

 

Conclusion

 

32. I am satisfied that the First-tier Tribunal was entitled, on the evidence before it, to reach the conclusion it did.  It did not err in law and therefore this appeal must be dismissed.

 

33. If the legislation is regarded as unsatisfactory now that regulation 82(1) has no practical effect, the remedy lies in the hands of the Secretary of State as legislator.  I suspect that, had the Secretary of State had responsibility for the day-to-day administration of housing benefit, he would have discovered the flaw in regulation 82 a long time ago. 

 

 

 

Mark Rowland

10 May 2013