CH/69/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I dismiss the claimant’s appeal against the decision of the Liverpool appeal tribunal dated 5 September 2002.

REASONS

2.	It is not in dispute that the claimant was overpaid housing benefit from 15 August 1989 to 15 July 2001 and council tax benefit from, I presume, 1 April 1993 to 15 July 2001, because the local authority assessed his entitlement without taking into account the fact that he was receiving disablement benefit throughout those periods.  It is also not in dispute that the overpayment from 22 January 2001 is not recoverable because the local authority knew on 20 January 2001 about that income.  This appeal arises out of a decision, dated 9 July 2001, whereby the local authority determined that the overpayment up to 21 January 2001, amounting to £15,580.64 housing benefit and £2,459.43 council tax benefit, was recoverable form the claimant.  

3.	Regulation 99 of the Housing Benefit (General) Regulations 1987 provides -

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

(2)	Subject to paragraph (4), 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 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 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)	…;
(d)	…,

where the claimant, a person acting on his behalf or any person to whom the payment is made, did not cause or materially contribute to that mistake, act or omission.

(4)	…”

Regulation 84 of the Council Tax Benefit (General) Regulations 1992 is in terms that are not materially distinguishable.  

4.	The claimant appealed to an appeal tribunal, contending that he had disclosed to the local authority the fact that he was receiving disablement benefit as soon as the award was made.  He also contended that he had submitted a bank statement to the local authority and that that showed receipt by him of disablement benefit.  It appears not to have been in dispute that, had there been full disclosure by the claimant, the overpayment would have been due to “official error” for the purposes of regulation 99 of the 1987 Regulations and regulation 84 of the 1992 Regulations and so would not have been recoverable.  However, the tribunal disbelieved the claimant and dismissed his appeal.

5.	The claimant now appeals against the tribunal’s decision with the leave of a full-time chairman.  There is only one ground of appeal, although it was put in two different ways in the application for leave to appeal.  It is submitted that the tribunal was not entitled to decide that the overpayment was recoverable from 3 March 1998 because there was clear evidence that, on that date, the local authority knew that the claimant had a Halifax bank account, that it had been indicated that the claimant’s entitlement to benefit would cease if he did not provide satisfactory evidence and that it is to be inferred that satisfactory evidence was provided.  At my direction, he has produced a quarterly statement from his Halifax bank account, covering the relevant period and showing, among many other entries, six entries marked “Bank Credit”, representing four-weekly payments of disablement benefit and four-weekly payments of disability living allowance.  It is submitted that the local authority should have noticed that there were regular credits and that, if they did not know what they were, they should have asked the claimant to explain them.

6.	The local authority resists the appeal, without commenting directly on the claimant’s grounds of appeal or referring to the legislation.  (The submission to the tribunal also failed to refer to the relevant legislation and there had to be an adjournment for a proper breakdown of the overpayment to be produced.  This was most unsatisfactory but, happily, the claimant’s representatives were aware of the relevant issues.)  It is stated that the claimant had consistently failed to tick the relevant box on his claim forms to indicate receipt of disablement benefit and that he had often denied having a bank account.  It is also stated that he had never previously produced any statement like the one before me and that the only statement previously submitted was a mini-statement dated 29 November 2000, which would not have revealed the frequency of credits.  The claimant has not commented on those observations.

7.	The document upon which this appeal is based started as a letter written by a housing officer in Bootle to the claimant on 20 February 1998, saying –

“Your entitlement to Housing Benefit / Council Tax Benefit expires on 01/03/98 and your claim has not yet been renewed.  The reason for this is shown below.

I have received a new application form from you but cannot process it because I require proof of capital, savings / confirmation of whether you live alone and a copy of a completed section 10 of your form.

REMEMBER:  A new claim form, fully completed and accompanied by satisfactory evidence of income etc., must be submitted within 4 weeks of the expiry date of your existing claim.  If you fail to do this, you will lose entitlement.”

Under the indented paragraph in that letter, there is a handwritten statement –

“NO BANK ACCOUNT.  I LIVE ALONE.”

That is signed by the claimant and dated 3 March 1998, which is the date the form was received by the local authority’s housing department in Crosby.  The form was received by the housing benefit section in Bootle two days later.

8.	The crucial entry, again handwritten, is –

“N.B. (Has Halifax account, proof to follow.)”

That appears below the previous entry, beside the claimant’s signature.  It is not clear to me whether it is in the same handwriting or is contemporaneous but the tribunal accepted that it was written on 3 March 1998, so that, before the renewal claim was processed, the housing benefit section knew that the claimant had a bank account.

9.	It may, as the claimant submits, be reasonable to assume that “satisfactory evidence” relating to his bank account was provided by the claimant before his renewal claim was determined.  However, quite apart from the fact that I am not satisfied that the tribunal was bound so to assume, I am wholly unable to accept that such evidence as may have been submitted was capable of amounting to disclosure of the claimant’s receipt of disablement benefit payments.  Even if it is assumed that the claimant submitted a statement in the form that has been produced to me, the local authority were entitled to act on the basis that it had been produced as evidence of the capital held in the account.  There was no duty on the local authority to analyse the payments into the account in case they revealed undisclosed income.  Furthermore, even if there were such a duty, and even if such an analysis were possible, and even if the local authority erred in awarding housing benefit and council tax benefit before the claimant had been asked to explain the credits to his account, there would still not have been an “official error”, because the claimant would have contributed to the error by failing to disclose his receipt of disablement benefit when expressly asked to do so on the claim form he had completed.

10.	Accordingly, I do not consider that the tribunal’s decision was inconsistent with the evidence before her.  She was entitled to decide as she did on the evidence before her and she gave adequate reasons for her decision.  In particular, her finding that there had been no disclosure of the disablement benefit in the claim forms was a sufficient answer to the claimant’s argument based on the local authority’s knowledge of the bank account.  I am not satisfied that the tribunal’s decision is erroneous in point of law.

	(Signed)	MARK ROWLAND
		Commissioner
		15 September 2003