[2004] UKSSCSC CH_939_2004 (14 May 2004)
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under paragraph 8(4) and (5)(c) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. It is:
I SET ASIDE the decision of the Preston appeal tribunal, held on 26 August 2003 under reference U/06/075/2003/00447, because it is erroneous in point of law.
I REMIT the case to a differently constituted appeal tribunal and DIRECT as follows.
The appeal tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under paragraph 6(9)(a) of Schedule 7 to the 2000 Act, any other issues that merit consideration. 
The appeal tribunal must investigate and determine whether the overpayment of housing benefit is recoverable from the claimant. 

The appeal to the Commissioner 
2.	This is an appeal by a claimant, brought with my leave. The other party to the appeal is the claimant’s local authority.
The issue
3.	The issue in this case is whether an overpayment of housing benefit is recoverable. The housing benefit was paid to the claimant’s landlord, but the local authority has sought recovery from the claimant himself. There is no doubt that there was an overpayment; the claimant has never challenged this. 
Could the claimant reasonably have been expected to know that housing benefit was being overpaid?
4.	I set aside the tribunal’s decision, because it did not deal adequately with this issue.
5.	In dealing with this issue the tribunal should have considered the question: should the claimant have known that the landlord was continuing to receive housing benefit for him? The tribunal did not deal with the information available to him that might have shown whether the landlord was continuing to receive payments. 
6.	There are in evidence some receipts purporting to show payments into a bank. In view of the letter from the Bank of Scotland, it is surely beyond doubt that the receipts were not from one of their branches. Anyway, they were for the wrong amount and there seems to me to be no possibility of doubt, on the evidence, that at least the February 2002 payment did not reach the landlord’s account. As I told the claimant when granting leave, at the least that raises the suspicion that he had later concocted the receipts to make the appearance of payment. 
7.	But concocting evidence does not necessarily show that the claimant should have known at the time that housing benefit was still being paid to the landlord. That would require further findings of fact, perhaps drawn by inference from the evidence available.
8.	I have directed a rehearing, because further investigation into the facts is needed. It would not be safe for me to substitute a decision on the information before me. The factual enquiry is better undertaken before a local appeal tribunal than before a Commissioner. 
9.	In view of the evidence of the concocted receipts, the claimant’s credibility will be in issue before the tribunal and I warn him to attend the hearing prepared to convince the tribunal that he should be believed. 
Other issues
10.	The tribunal did not deal with two other issues:
•	was the whole of the overpayment caused by the official error of the officer of the Department for Work and Pensions who failed to notify the local authority, as promised, that the claimant was no longer receiving a jobseeker's allowance?
•	did the claimant cause or contribute to the mistake that led to the overpayment? 
11.	Those issues did not arise on the way that the tribunal dealt with the case. They may or may not arise at the rehearing. I have read what the local authority has to say on these matters in its observations on pages 74 and 75.  I note what those observations say about the duty of the Department for Work and Pensions/Benefits Agency. However, it is surely possible for an individual officer to undertake to a claimant that information will be passed on. If that undertaking is not honoured, that would be an official error. 
Disposal
12.	I allow the appeal and direct a rehearing.

Signed on original
on 14 May 2004	Edward Jacobs
Commissioner