[2008] UKSSCSC CH_4066_2007 (21 October 2008)

PLH                                                                            Commissioner's File: CH 4066/07

	SOCIAL SECURITY ACTS 1992-2000

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

     1.     	This appeal by the housing benefit authority, the Leicester City Council, must be allowed. The decision of the Leicester appeal tribunal on 2 November 2006 (Mr M T Coxon, chairman, sitting alone) must be held defective in point of law as the tribunal’s decision notice of that date, as reissued on 14 September 2007 with a manuscript addition by the chairman dated the previous day, fails to record sufficiently clear findings of fact and reasoning on the part of the tribunal on the material factual and legal issues in the case and no proper statement of findings and reasons has ever been issued, despite a timely request for such a statement made on behalf of the council on 9 November 2006, only a week after the date of the hearing itself.  I set the decision aside and in accordance with paragraph 8(5)(c) Schedule 7 Child Support, Pensions and Social Security 2000 refer the case to a fresh tribunal for redetermination in accordance with the directions given below.
     2.     	This appeal seems the result of not one but at any rate two separate chapters of accidents.  Something obviously went seriously wrong at the tribunal since as already indicated no proper statement of the findings of fact and reasons which led the tribunal to its decision of 2 November 2006 was ever issued despite the council’s duly made request, initially only a week after the hearing (page 110) and repeated at intervals subsequently.  Where the blame for this lies as between the tribunal administration and the chairman who conducted the hearing on 2 November 2006 is unclear and does not matter for this purpose, because on either footing there has been a failure to comply with the tribunal’s obligation as a judicial body to provide such a statement on a properly made request.  The  eventual response in a letter from the tribunal clerk dated 14 September 2007 at page 118 that the reissued decision notice incorporating the chairman’s manuscript amendment added to it over 10 months later, in conjunction with his notes of the evidence and submissions at the hearing, should be “treated together” as if they were a statement of his findings of fact and reasons, is self-evidently inadequate because this is not what these documents contain.  One would have to infer and speculate about what actually led him to the conclusions he reached and what he did or did not accept, and the whole point of the reasons any judicial body is  required to provide is that there should be clarity on such matters and not guesswork.  
     3.     	There is thus no doubt in my judgment that the council was entitled to bring its appeal and that it must succeed on those grounds.  I note the claimant’s comment in his note at page 151 that it is unfair for an appeal to be allowed to proceed so far outside the normal time limit, and he is quite right that the overall delay after the tribunal’s decision in this case has been wholly unsatisfactory.  However this delay is not the council’s fault . It acted well within the prescribed time limits both in requesting a statement of reasons after the hearing, and in bringing its appeal after it was eventually told in September the following year that the inadequate documents already issued were to be “treated as a statement of reasons”.  In those circumstances the council was rightly granted leave to appeal by the district chairman and has pursued its appeal within the proper time limits since: it cannot therefore be penalised for the tribunal’s failures.
     4.     	The council’s own chapter of accidents is more difficult to piece together given the paucity of actual findings in the tribunal’s decision, and the abbreviated nature of the chairman’s note; but for present purposes the facts may be summarised as follows.  The appeal to the tribunal was by the claimant against a decision, originally issued by the council on 7 December 2004 but then revised and reissued on 3 September 2005, that a sum of housing benefit overpaid for the period 17 May to 12 September 2004 inclusive was legally recoverable from him: in total (as revised) £2230.06.  
     5.     	It is common ground that the claimant, who is one of the council’s own tenants, had had an award or awards of housing benefit for this period in respect of the property he occupies with his wife.  He is registered blind and depends to some extent on help from her and other people in dealing with documents and claims.  The couple had been drawing income support since 2003 on a claim made by her, and the claimant’s housing benefit award had been on the footing that he or she was an income support claimant.  
     6.     	It was also common ground by the time of the tribunal hearing that at no time during the period in dispute did the claimant meet the conditions for entitlement to housing benefit.  He had had capital of over £16,000 since receiving the maturity proceeds of an insurance policy towards the end of April 2004, and his wife’s income support had been terminated because of this from 11 May 2004.  The Council had made separate decisions on 7 December 2004 and 3 September 2005 revising and reducing to nil the claimant’s awards of entitlement to housing benefit for the total period 17 May 2004 to 12 December 2004 inclusive, and these were not challenged in the appeal.  The only issue before the tribunal was whether he was legally liable to repay the overpaid amount down to 12 September 2004, the council having agreed that its own delay in processing information made the overpayment after that date irrecoverable:  see page 44.
     7.     	The claimant’s main ground of appeal was that he contended the council had been notified by his wife about the capital from his insurance policy almost as soon as he received it at the end of April 2004, so he was not at fault and the whole overpayment must have been due to official error so it was irrecoverable:  see his appeal form, page 46.  
     8.     	The council however was categoric that no such notification had been received. Its own records from May and June 2004 showed that on the contrary the claimant had been pressing to receive his housing benefit payments, at that time suspended in the accounting department for other unconnected reasons, and as late as 22 April 2004 he had signed a statement at interview (page 19) confirming he was still on income support and there had been no changes in circumstances.  The council had only became aware of the true facts some time after it received a direct notification from the DWP on 16 September 2004 saying (but without giving any further detail) that the claimant’s wife had had her income support terminated from 11 May 2004 (page 21).  Its enquiries of the claimant after getting that notice met with the initial response that an insurance policy had matured and he would be completing a fresh claim (signed statement of 17 September 2004 at page 23, implying he was then still claiming some continuing entitlement).  Only some time after that did they receive his signed letter dated 25 November 2004 saying that after taking advice “we do not wish to claim any benefits from the date of exclusion of income support as our savings exceed £16,000” (page 24).  
     9.     	That letter according to the council had been the first clear indication from the claimant of the size of the capital involved, making any entitlement since he acquired it, or any further claim while he retained it, out of the question.  On the receipt of that information it issued the original decision letters of 7 December 2004 revising his previous award, reducing to nil his housing benefit entitlement for the relevant period, and determining the overpaid benefit to be recoverable from him.  
     10.     	In the meantime however it appears that the administrative suspension of payments, about which the claimant had been complaining in May 2004, had been lifted, and payments in accordance with his earlier (and still running) awards had been resumed, including making up what were believed to be arrears due to him on the basis of those awards.  The sorting out of the problems in the accounting department seems to have been protracted, and the process was not completed until October 2004.  Thus it was that on about 25 October 2004 a lump sum transfer of over £5,000 “arrears” had been made to the credit of the claimant’s rent account within the council’s housing department, including housing benefit for the whole of the period at issue, apparently without reference to the enquiries then under way in the benefit department.  That transfer was thus made at a time after the council had received the short notification from the DWP on 16 September 2004 that the claimant’s wife had had her income support terminated from May, but before it had completed its enquiries and been told by the claimant at the end of November of the actual amount of his savings, and also of course before his entitlement had been redetermined in the light of that information on 7 December 2004.
     11.     	The tribunal chairman appears to have thought it unnecessary to resolve the principal factual issue on the claimant’s appeal of whether he had given the council all the relevant information via his wife in May 2004, so that everything that happened afterwards was their fault.  Without deciding that issue, the chairman nevertheless found the whole of the benefit overpayment for the period in question to have been due to “official error” and to be irrecoverable, saying:  
“I am content that certainly by the middle of September 2004 the respondent was aware that the appellant had received capital in excess of £16,000.  Notwithstanding that knowledge benefit was transferred to his rent account some time in October.  That was the mistake that caused the overpayment.  Until that mistake was made there was no overpayment.”
More than 10 months after the original decision notice of 2 November 2006 (the date of the hearing), the chairman made the manuscript addition dated 13 September 2007 shown on the reissued copy on page 111, saying 
“The appellant neither caused nor contributed to the error and given that his rent account was credited, he could not have been aware of the overpayment.”  
As the council points out, that addition was made only after it had sought to appeal on the grounds inter alia that the issue of “contribution” had not been addressed in the decision.
     12.     	I agree with the helpful submission on behalf of the council by its appeals officer Mr A Miles at pages 137 – 141 that the reasoning thus expressed by the tribunal in its decision notice is simplistic and insufficient to support the conclusion that none of the overpaid benefit was recoverable from the claimant in terms of section 75 of the Social Security Administration Act 1992 and the relevant regulations in part XIII of the Housing Benefit (General) Regulations SI 1987 No.1971.  Apart from anything else, there seems to have been no evidence to support a finding that the council had become aware of the actual amount of the claimant’s capital by mid-September 2004 if it was not established as a fact that the claimant had informed them expressly of this in May. 
     13.     	In particular, (and I so direct the new tribunal which will now have to rehear the case) a properly reasoned decision on the material before the tribunal ought in my view to have included clear reasoned findings on the following issues, on all of which the decision documents supplied by the previous tribunal were deficient:  
(1) whether the claimant did in fact notify the council of the termination of his wife’s income support in May 2004 as he claimed, and whether he then also informed it in sufficiently clear terms that he had capital in excess of £16,000 so as to put it in a position from that time onwards to redetermine his entitlement correctly: if so whether the failure to do so was due to official error; 
(2) whether any decision to resume or release previously suspended payments in October 2004 itself amounted to “official error” within the terms of regulation 99(3) of the Housing Benefit regulations cited above, when this appears to have resulted from purely administrative action to do with the council’s internal accounting systems, not any conscious decision to do with the claimant’s housing benefit entitlement under his then still continuing current award;
(3) whether it had also been shown that the claimant or a person acting on his behalf “did not cause or materially contribute” to the mistaken overpayment so as to satisfy the further condition in regulation 99(3): in particular whether any failure by him or his wife to give clear and sufficient information about his capital position over the relevant period from the start of May 2004 had not contributed materially to his incorrect award of housing benefit being left in place for so long, and thus to the overpayment in respect of that still current award being made in October; and 
(4) whether in any event the fact that the “payment” of housing benefit in point here was actually made not in the form a physical payment to the claimant or anyone else, but only as an internal transfer within the council’s own accounting systems resulting in a rent rebate credit to his rent account, brings the case within the wider separate provision in regulation 99(4) by which overpayments of benefit by way of incorrectly credited rent rebate are recoverable in certain circumstances even where they are the consequence of official error.
     14.     	I further direct the new tribunal that for the purposes of the “contribution” issue in paragraph 13(3) above the negative causal test in regulation 99(3) is much more stringent than the previous chairman seems to have assumed.  It cannot be answered in the claimant’s favour merely by finding that (of course) he would not have got his overpayment if the council’s accounting department had not lifted the suspension on  payments.  If the “official error” consisted in making him a payment or credit to which he was not entitled, the tribunal has to be satisfied that no act or omission of his, or on his behalf, had contributed materially to the chain of events which led to his being paid on the assumption that he was: in practice a “but for” test, or something very close to it, bringing in all his own acts or omissions in relation to his claim and existing award.  
     15.     	For those reasons I allow this appeal, set aside the decision of the tribunal, and remit the case to a freshly constituted tribunal which I direct to rehear and redetermine the claimant’s appeal against the council’s decision of 7 December 2004 (as revised on 3 September 2005) that the sum of £2,230.06 overpaid housing benefit for the period 17 May to 12 September 2004 is legally recoverable from him.

(Signed)
P L Howell
Commissioner
21 October 2008