MC-v-Department for Social Development (HB) [2013] NICom 21

Decision No:  C2/12-13(HB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

HOUSING BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 13 January 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal by the Northern Ireland Housing Executive (NIHE) from the decision of the appeal tribunal sitting at Newry on 13 January 2012.

2.	For the reasons given below, I allow the appeal of the NIHE.  I consider that I cannot determine the appeal myself and I remit the appeal to a newly constituted tribunal for determination.

REASONS

	Background

3.	The claimant made a claim for housing benefit (HB) on 4 September 2009.  Following receipt of further evidence, the NIHE awarded HB from 7 September 2009.  At the time of the claim the claimant notified the NIHE of her level of earnings and her child benefit income.  In July 2010 the claimant provided the NIHE with further evidence of income in the form of a completed certificate of earnings and payslips for a five-week period.  On 9 September 2010 the NIHE learned that the claimant had been awarded tax credit (TC) from May 2010.  The NIHE decided that an overpayment of HB had occurred due to its ignorance of this material fact.  On the same day the NIHE decided that overpaid HB amounting to £1,441.94 was recoverable from the claimant.  The claimant appealed.

4.	A tribunal consisting of a legally qualified member (LQM) sitting alone heard the appeal on 13 January 2012.  The tribunal allowed the appeal on the grounds that there had not been a valid supersession decision removing entitlement to HB.  On 24 January 2012 the NIHE requested a statement of reasons for the tribunal’s decision.  The statement of reasons was issued on 20 March 2012.  On 19 April 2012 the NIHE applied for leave to appeal to the Social Security Commissioner.  Leave to appeal was refused by the LQM on 24 April 2012 in a determination issued on 27 April 2012.  On 17 May 2012 the NIHE made an application to a Social Security Commissioner for leave to appeal.

	Submissions

5.	The NIHE submits that the tribunal has erred in law as follows:

	(i)	Before considering whether or not the sum of £1,441.94 was recoverable from the claimant the tribunal had looked at the question of whether there had been a valid supersession of the claimant’s entitlement to HB, but decided that it did not comply with the requirements of the Housing Benefit Regulations (NI) 2006 and was therefore invalid.  It is submitted that the decision was defective but that the claimant did not suffer any prejudice and that it was possible to remit the decision to the NIHE to be corrected.  Accordingly the tribunal erred in law by holding the supersession decision to be defective.

6.	On 4 July 2012, the claimant was given an opportunity to make observations on the NIHE’s grounds of application.  She responded on 24 July 2012 indicating that she opposed the application, relying on the tribunal’s reasoning.

	The tribunal’s decision

7.	The claimant does not speak English as a first language and the tribunal proceedings were previously adjourned in order to obtain an interpreter.  The interpreter did not arrive on the day of hearing, and by consent the tribunal proceedings were conducted without an interpreter, but with the claimant’s daughter translating.  Nothing turns on that, however.

8.	At the hearing, the legally qualified member (LQM) questioned the NIHE on the issue of whether there had been a valid supersession decision altering the claimant’s entitlement to HB prior to the decision which held that there was a recoverable overpayment.  The decision relied upon was the document at Tab 23 in the NIHE submission to the tribunal.  The LQM expressed doubt that it was a valid decision.  The NIHE presenting officer also then referred to Tab 22 as the actual decision.  This was a printout from the NIHE’s computer system.

9.	The LQM in her statement of reasons indicates that “I am not satisfied that this decision notice complies with the statutory requirements of Schedule 9 Housing Benefit Regulations (NI) 2006.  Paragraph 3: Every decision notice shall include a statement as to the right of any person affected by that decision … to appeal against that decision and the manner and time in which to do so”.  She allowed the appeal on the basis that the decision given to the applicant was not a valid decision superseding or revising the claimant’s entitlement to HB.

	Relevant Legislation

10.	The basis for the right of appeal to an appeal tribunal in relation to a HB decision arises from section 59 of and Schedule 7 to the Child Support, Pensions and Social Security Act (NI) 2000.  Specifically paragraph 6, so far as relevant, provides:

‘SCHEDULE 7

Section 59.

HOUSING BENEFIT: REVISIONS AND APPEALS

…

6.—(1) Subject to sub-paragraph (2), this paragraph applies to any relevant decision (whether as originally made or as revised under paragraph 3) of a relevant authority which—

	(a) is made on a claim for, or on an award of, housing benefit; or

	(b) does not fall within head (a) but is of a prescribed description.

(2) ….

(3) In the case of a decision to which this paragraph applies, any person affected by the decision shall have a right of appeal to an appeal tribunal.

(4) ….

(5) ....

(6) Where any amount of housing benefit is determined to be recoverable under section 73 of the Administration Act (overpayments of housing benefit), any person from whom it has been determined that it is so recoverable shall have a right of appeal to an appeal tribunal.

(7) A person with a right of appeal under this paragraph shall be given such notice of the decision in respect of which he has that right, and of that right, as may be prescribed.

(8) Regulations may make provision as to the manner in which, and the time within which, appeals are to be brought.

(9) ….’

	Regulation 85 and 86 of the Housing Benefit Regulations (NI) 2006 provide for decision-making in respect of HB.  These read:

‘85.—(1) Unless provided otherwise by these Regulations, any matter required to be determined under these Regulations shall be determined in the first instance by the relevant authority.

(2) The relevant authority shall make a decision on each claim within 14 days of the provisions of regulations 81 and 82 being satisfied or as soon as reasonably practicable thereafter.

86.—(1) An authority shall notify in writing any person affected by a decision made by it under these Regulations—

	(a) in the case of a decision on a claim, forthwith or as soon as reasonably practicable thereafter;

	(b) in any other case, within 14 days of that decision or as soon as reasonably practicable thereafter,

and every notification shall include a statement as to the matters set out in Schedule 10.

(2) A person affected to whom an authority sends or delivers a notification of decision may, by notice in writing signed by him, within one month of the date of the notification of that decision (or, if the decision was notified before 1st May 2011, before 1st June 2011) request the authority to provide a written statement setting out the reasons for its decision on any matter set out in the notice.

(3) For the purposes of paragraph (2), where a person affected who requests a written statement is not an individual, the notice in writing referred to in that paragraph shall be signed by a person over the age of 18 who is authorised to act on that person’s behalf.

(4) The written statement referred to in paragraph (2) shall be sent to the person requesting it within 14 days or as soon as is reasonably practical thereafter.’

	Further, regulation 10 of the Housing Benefit (Decisions and Appeals) Regulations (NI) 2001 reads:

‘10.—(1) A person affected who has a right of appeal against a relevant decision shall be given written notice— 

	(a) of the decision against which the appeal lies;

	(b) in a case where that notice does not include a statement of reasons for the decision, that he may, within one month of the date of notification of that decision (or, if the decision was notified before 1st May 2011, before 1st June 2011), request the relevant authority to provide him with a written statement of the reasons for that decision, and

	(c) of his right of appeal against that decision.

(2) Where a written statement of the reasons for the decision is not included in the written notice of the decision and is requested under paragraph (1)(b), the relevant authority shall, so far as practicable, provide that statement within 14 days.’

	Regulation 97 of the Housing Benefit Regulations (NI) 2006 provides for the recovery of overpaid benefit as follows:

‘97.—(1) Any overpayment, except one to which paragraph (2) applies, shall be recoverable.

(2) Subject to paragraph (4), this paragraph applies to an overpayment which arose in consequence of 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 receipt of the payment or of any notice relating to that payment, reasonably have been expected to realise that it was an overpayment.

(3) In paragraph (2), “overpayment which arose in consequence of an 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;

		(ii) the Department for Employment and Learning;

		(iii) Revenue and Customs,

		acting as such; or

	(d) a person providing services to either Department mentioned in sub-paragraph (c) or to the Commissioners for 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.

(4) Where in consequence of an official error, a person has been awarded rent rebate or rate rebate or both to which he was not entitled or which exceeded the benefit to which he was entitled, upon the award being revised or superseded any overpayment of benefit, which remains credited to him by the relevant authority in respect of a period after the date on which the revision or supersession took place, shall be recoverable.’

	Schedule 10 to the Housing Benefit Regulations (NI) 2006 provides for the form of decisions made under regulation 86. It reads in so far as is relevant:

‘SCHEDULE 10

Regulation 86

Matters to be included in decision notice

PART I

General

1. The statement of matters to be included in any decision notice issued by a relevant authority to a person, and referred to in regulation 86 and in regulation 10 of the Decisions and Appeals Regulations are those matters set out in the following provisions of this Schedule.

2. Every decision notice shall include a statement as to the right of any person affected by that decision to request a written statement under regulation 86(2) and the manner and time in which to do so.

3. Every decision notice shall include a statement as to the right of any person affected by that decision to make an application for a revision in accordance with regulation 4(1)(a) of the Decisions and Appeals Regulations and, where appropriate, to appeal against that decision and the manner and time in which to do so.

4. Every decision notice following an application for a revision in accordance with regulation 4(1)(a) of the Decisions and Appeals Regulations shall include a statement as to whether the original decision in respect of which the person made his representations has been confirmed or revised and where the relevant authority has not revised the decision the reasons why not.

5. Every decision notice following an application for a revision in accordance with regulation 4(1)(a) of the Decisions and Appeals Regulations shall, if the original decision has been revised, include a statement as to the right of any person affected by that decision to apply for a revision in accordance with regulation 4(1)(a) of those Regulations and the manner and time in which to do so.

6. An authority may include in the decision notice any other matters not prescribed by this Schedule which it sees fit, whether expressly or by reference to some other document available without charge to the person.

7. Parts II, III and VI shall apply only to the decision notice given on a claim.

8. Where a decision notice is given following a revision of an earlier decision—

	(a) made of the authority’s own motion which results in a revision of that earlier decision; or

	(b) made following an application for a revision in accordance with regulation 4(1)(a) of the Decisions and Appeals Regulations, whether or not resulting in a revision of that earlier decision,

that notice shall, subject to paragraph 6, contain a statement only as to all the matters revised.

…

PART VII

Notice where recoverable overpayment

15.—(1) Where the appropriate authority makes a decision that there is a recoverable overpayment within the meaning of regulation 97, the decision notice shall include a statement as to—

	(a) the fact that there is a recoverable overpayment;

	(b) the reason why there is a recoverable overpayment;

	(c) the amount of the recoverable overpayment;

	(d) how the amount of the recoverable overpayment was calculated;

	(e) the benefit weeks to which the recoverable overpayment relates; and

	(f) where recovery of the recoverable overpayment is to be made by deduction from a rent allowance or rebate or rate rebate, as the case may be, that fact and the amount of the deduction.

(2) 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 being the claimant on whose behalf the recoverable amount was paid,

the decision notice sent to that landlord shall identify both—

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

	(ii) claimant A.’

	Hearing

11.	I held an oral hearing of the application.  The NIHE was represented by Miss Murray from Decision Making Services.  The claimant appeared, represented by Councillor Curran.  The claimant had the benefit of a Polish interpreter.

12.	It appeared to me that the documents submitted by the NIHE raised an arguable case that the tribunal had erred in law and I granted leave to appeal accordingly.  With the consent of the parties, I then proceeded to hear and determine the application as if it were an appeal.

13.	Miss Murray outlined that the tribunal had allowed the claimant’s appeal on the basis that there had not been a valid supersession or revision decision in respect of the claimant’s HB, and that the tribunal had not gone on to consider the substantive issue of the overpayment.  While she conceded that the decision notice did not fully comply with Schedule 10 to the Housing Benefit Regulations (NI) 2006, she nevertheless submitted that the tribunal had erred in law as it should have adjourned to allow the NIHE to remedy the defective notice.  She submitted that the claimant had suffered no injustice as a result of the defective notice. 

14.	Councillor Curran did not address the legal issues before me in his submissions, but vouched for the honesty of the claimant.  The claimant herself addressed me on the factual circumstances.  A factual dispute emerged on the question of whether the applicant brought bank statements to the NIHE office on 23 July 2010 along with payslips.  This was relevant to the question of whether there had been disclosure of the material change in circumstances, but not to the principal issue which I have to decide in this appeal.

	Assessment

15.	The sole question before me is whether the tribunal was correct as a matter of law to hold that there was no valid decision superseding the claimant’s entitlement to HB.  In principle, this is a crucial question in any overpayment appeal.  The direct consequence of there not having been a valid supersession is that the original award on the claim would still stand.  The claimant would retain entitlement to HB for the period of the claimed overpayment and the NIHE could not establish that any overpayment is recoverable.

16.	The tribunal in the present case correctly identified that supersession of an existing award is necessary before overpayment and pressed the NIHE presenting officer to identify the decision superseding the award.  By way of explanation the presenting officer referred to Tabs 21, 22 and 23 in the NIHE submission to the tribunal.

17.	Tab 21 was described as a determination to include working tax credit and child tax credit in the HB calculation.  This appears to be a manual record of information concerning the claimant’s TC award which was to be input to the NIHE computer system on 9 September 2010.  It was explained that the computer system was programmed to supersede or revise.  Tab 22 was described as the output from the computer system of the figures which were input on 9 September 2010.  It is in the form of a computer screen print, showing no entitlement from 10 May 2010.  Tab 23 is the document generated by the computer which would have been sent to the claimant by way of notification of the decision.

18.	The legal framework for first instance HB decisions derives from regulations 85 and 86 of the Housing Benefit Regulations (NI) 2006.  This legislation requires the relevant authority to make decisions and to notify any persons affected of the decision.  Any notification is required to comply with the formalities prescribed in Schedule 10 to the HB Regulations.  Among other things these require that any decision notice shall include a statement of the right to request a written statement of reasons for the decision and a statement of the right to request revision or to appeal, giving information on the manner and time in which to appeal.

19.	In her statement of reasons the LQM says:

“… a decision notice ending entitlement to Housing Benefit on 05 September 2010 was issued to (the claimant) (Tab 23) on 13 September 2010.

I am not satisfied that this decision notice complies with the statutory requirements of Schedule 9 [sic] Housing Benefit Regulations (NI) 2006.  Paragraph 3 “Every decision notice shall include a statement as to the right of any person affected by that decision … to appeal against that decision and the manner and time in which to do so”.

The decision notice issued to (the claimant) on 13 September 2010 which ended her entitlement to Housing Benefit on 05 September 2010 was clearly deficient in this respect.  While it explained how to request a review and the necessary time limits for so doing, it dealt with appeal rights in the following sentence “if you remain dissatisfied you have a right of appeal to an independent body” which specifies neither the manner nor time within which such appeal must be brought.

While I am aware that this decision notice was issued together with notice of an overpayment decision (Tab 2) which did, in an accompanying letter (Tab 25) correctly advise of appeal rights, nevertheless the supersession and overpayment decision are two separate entities, each carrying separate and distinct rights of appeal and a claimant is statutorily entitled to notification of these in respect of each individual decision.

I am therefore not satisfied that the decision notice in respect of the entitlement decision complies with the requirements of Schedule 9 [sic] and it follows that there has not been a valid decision superseding or revising (the claimant’s) entitlement to Housing Benefit”.

20.	The reference to Schedule 9 is a slip deriving from the slightly different structure of the equivalent regulations in Great Britain.  The relevant wording is virtually identical between our Schedule 10 and the Great Britain Schedule 9.

21.	The LQM found that there was a supersession decision, accepting that Tab 23 amounted to such.  This is a document headed “Benefit Decision Notice” which consists of a calculation of entitlement, setting out various relevant figures and dates and assessing weekly benefit entitlement as nil from 5 September 2010.  It is virtually unintelligible to a person with no knowledge of the principles of calculation of HB.  It nowhere refers to the concept of supersession or indicates that it is a supersession decision.  It nowhere sets out grounds for supersession.  However, it does offer the information that a written statement of reasons for any HB decision can be requested.  Nevertheless, the HB regulations do not require that a decision should indicate that it is a supersession decision, or state the grounds for supersession relied upon by the decision-maker.

22.	The language of the HB regulations makes it mandatory for a HB decision to include a statement of how to appeal and the time limit in which the right should be exercised.  The decision issued to the claimant merely indicated that there was a right of appeal to an independent body.  The LQM considered that the absence of a statement of appeal rights was fatal to the validity of the decision.  It has been necessary for me to consider a number of relevant authorities to assess if that view was correct in law.  They deal with the consequences of a failure to comply with a procedural rule for a decision made or act done other than in compliance with the required procedure.

23.	Previous authorities, including London and Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 had focused on statutory language and the question on whether a procedural requirement was mandatory or directory.  Subsequently in R v Secretary of State for the Home Department, ex parte Jeyeanthan [2000] 1 WLR 354, which concerned the validity of the Secretary of State’s application for leave to appeal from a tribunal decision, focus was directed instead to the question of whether there had been substantial compliance with a procedural requirement.  More recently in R v Soneji [2005] UKHL 49, in deciding what were the legal consequences of procedural failures the House of Lords held that the emphasis should be, rather than on the rigid distinction between mandatory and directory provisions, on the consequences of non-compliance, and whether Parliament could fairly be taken to have intended total invalidity.

24.	The case of Haringey London Borough Council v Awaritefe (1999) 32 HLR 517 concerned the situation where a council had failed to comply with requirements in paragraphs 2, 3 and 5 of Schedule 6 to the former Housing Benefit (General) Regulations 1987.  These were concerned with giving notice of the right to a written statement of reasons, information on time and manner of appealing and right to seek revision.  In Awaritefe the Court of Appeal in England and Wales held that there had been substantial compliance with the requirements of the Schedule.  The fact that there had been breaches of the procedures laid down by the statutory instrument was not decisive of the question whether the determination made by the council was valid or invalid, enforceable or unenforceable.  The relevant issue was said to be whether the defendant had suffered substantial harm as a result of any breaches of Part 1 of Schedule 6.

25.	In R(H) 3/04 a Great Britain Tribunal of Commissioners considered the issue of failure to comply with HB procedural requirements.  The Tribunal was considering the situation following the introduction of a right of appeal in HB cases from 2 July 2001, whereas Awaritefe concerned the previous remedy for a person dissatisfied with a HB decision - namely the Housing Benefit Review Board, followed by judicial review.  The Tribunal found that the right of appeal on factual matters meant that a lot of previous arguments concerning procedural defects by an authority would cease to have effect.  The Tribunal held, at paragraph 75, that, because the appeal process would allow an opportunity for a full rehearing, in the normal case the failure to notify the appellant of his right of appeal would cease to cause the appellant any significant injustice by the time a properly constituted appeal got before a tribunal.

26.	In R(P) 1/04, Annex B, paragraph 4, Commissioner Williams held that the fact that a decision of HM Revenue and Customs did not mention appeal rights did not remove the fact that there had been a decision, and that there are appeal rights, activated once it has been notified properly.

27.	In the case of GL v Department for Social Development (IS) [2012] NI Com 238 I considered the position where there had been a failure to notify the appellant of his right of appeal under regulation 28 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 in a case concerning income support offsetting.  I held that, even though there had not been compliance with regulation 28, since the appellant had exercised his right of appeal he had suffered no injustice.

28.	In that case I referred to the practice in the First tier Tribunal (Asylum and Immigration Chamber).  A notice of an immigration decision under the Immigration (Notices) Regulations 2003 must notify the person affected of the right of appeal.  Where the notice is defective and does not indicate the right of appeal, the tribunal holds that time for appealing against the decision does not begin to run.  Nevertheless, if the person affected does in fact enter a notice of appeal, he may be taken to have waived the failure to advise him of a right of appeal, and the tribunal may treat the notice of decision as valid for the purposes of constituting his appeal (see the reported decision of the Upper Tribunal (Asylum and Immigration Chamber in LO (Partner of an EEA national: Nigeria) [2009] UKAIT 00034)).  I consider that this is a pragmatic and procedurally fair approach.

29.	In the present case, it seems to me that the HB decision notice which indicated to the claimant that “you have a right of appeal to an independent body” was substantially in compliance with the requirement of Schedule 10.  In the light of relevant authorities, it appears to me that once the appellant appealed, she must be taken to have waived the right to make any issue of the fact that the decision notice did not specify how to appeal.  The fact that the claimant exercised her right of appeal meant that no injustice resulted to her.

30.	Had it been the case that the applicant had not appealed in time or in the correct manner, leading to her appeal falling on procedural grounds, I would have held that she had a continuing right of appeal, with time limits starting to run from the date of any decision notice complying with the terms of Schedule 10.  That is my understanding of how the relevant authorities should be applied.  That is not the case I have to decide however.  The authorities in the present circumstances indicate that the procedural defect should not invalidate the decision of the NIHE.  Applying R v Soneji, which post-dates much of the relevant authorities in social security cases, I cannot accept that Parliament intended that the consequence of the NIHE’s failure to comply with the requirements of Schedule 10 would be the total invalidity of the decision under appeal.

31.	This is a case involving two decisions – one on entitlement and one on overpayment.  The LQM held, correctly, that “the supersession and overpayment decision are two separate entities, each carrying separate and distinct rights of appeal and a claimant is statutorily entitled to notification of these in respect of each individual decision”.

32.	In HB overpayment cases, the decision awarding entitlement must be revised or superseded before any overpayment can be raised (see C2/10-11(HB)).  As said in that decision, and as reinforced by the Court of Appeal in Northern Ireland in Hamilton v Department for Social Development [2010] NICA 46, however, there is not a need for separate entitlement and overpayment decisions to be notified at different times, or to be laid out in separate decision notices, as a matter of law.

33.	In the present case the decision sheet of 9 September 2010 reads “As a result of the supersession decision of 09/09/10 an overpayment of Housing Benefit has occurred from 10/05/10 to 29/08/10”.  The letter sent to the claimant on 9 September 2010 starts “Your entitlement to Housing Benefit at the above address has been reassessed and as a result an overpayment of Housing Benefit has occurred during the period 10/5/10 to 29/8/10 (16 weeks @ £90.12 per week total overpayment £1441.94)”.

34.	I consider that the appeal from the decision of 9 September 2010 raised both the issue of supersession of entitlement and the recoverability of any resulting overpayment.  Both matters required to be determined by the tribunal.  By deciding that the decision notice of 13 September 2010 was not valid, on the basis of a failure to notify appeal rights, I consider that the tribunal has materially erred in law.  It follows that I allow the appeal of the NIHE and set aside the decision of the appeal tribunal.

35.	At the hearing, the claimant sought to make submissions to me on factual matters and I heard certain of her submissions.  However, I consider that the matter could not be resolved on oral evidence alone and that the claimant would be disadvantaged if I proceeded to determine the matter.  Therefore I remit the appeal for redetermination by a newly constituted tribunal.

(signed):  O Stockman

Commissioner

13 March 2013