Decision of the Upper Tribunal Judge

The appeal is refused.  I find no error of law in the decision of an appeal tribunal (the tribunal) sitting in Sheffield on 13 December 2007.  The tribunal’s decision, therefore, stands.  

REASONS FOR DECISION

Legislation

1.	The relevant legislation is regulation 100 of the Housing Benefit Regulations 2006. Paragraph (1) of that regulation provides that an overpayment is recoverable unless paragraph (2) applies. Paragraph (2) (as amended) provides:

	‘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.’ 
2.	Paragraph (4) does not apply on the facts of this case. It was conceded by the local authority that the overpayment was caused by official error. 

Background

3.	It is unsurprising that Sheffield City Council (the local authority) made the above concession that the overpayment in issue was caused by official error.  From the outset of the claimant’s current housing benefit (HB) claim, dated 22 November 2002, her HB had been paid on the basis that she was a joint tenant, and thus sharing liability for the relevant rent.  Initially, therefore, her HB was calculated on the basis of, firstly, a gross rent, which represented the claimant’s portion of the total rental liability and then, secondly, subject to a small rent deduction because the rent service determined that the accommodation was inappropriate.  Following the death on 10 May 2005 of one of the original three joint tenants, on 6 June 2005 the claimant’s HB was revised to take into account that there were now only two joint tenants, so that the claimant’s rent liability was now 50% of the total eligible rent, as determined by the rent officer service, and the claimant’s weekly award was increased to £48.33 with effect from 16 May 2005 (the actual rent at the time for the shared house being £450.00 per calendar month for the whole property).  

4.	Thus far, so good.  Then, however, came an event which one can only speculate was the cause of the further problems, though it does not excuse them.  On 14 November 2005, the council tax section of the local authority received a form from the other remaining tenant (Mr C) stating that he was now resident full-time in a nursing home, following a stay in hospital.  There was no indication that the stay was permanent, nor any link made with the claimant’s HB.  Moreover, following an HB and council tax benefit (CTB) review visit on 4 July 2006, the claimant confirmed that there were currently two tenants in the property, the claimant and Mr C.  

5.	How this particular local authority worked is indeed mysterious, and by any standard lax; because, notwithstanding the above, on 10 October 2006, the local authority revised the claimant’s HB to amend her rent liability to 100% of the weekly eligible rent, thus doubling the claimant’s HB to £96.92 per week and covering almost all of the total rent bill.  This was to take effect from 31 May 2006 and so included a substantial sum for arrears.  The notification of 10 October 2006 stated that the reason for the change was “eligible rent for benefit has been re-calculated by the Rent Officer”.  However, this was an obvious nonsense, as the last rent officer’s decision had been dated 1 June 2005, presumably following the death of one of the original three tenants on 10 May 2005, and merely confirmed an earlier decision that the claim related rent was £420 every calendar month and not the real rent of £450 for the same period.  

6.	In due course, and belatedly, the local authority realised the mistake it had made.  On 2 August 2007, the claim was revised to reflect a 50% joint tenancy for rent liability purposes and, as a consequence, the claimant’s HB was reduced back down to £48.46 per week, with effect from 31 May 2006.  A revision letter in those terms was issued and an overpayment decision of the same date was made and notified, to the effect that there had been an HB overpayment of £2,699.91, covering the period 31 May 2006 to 26 June 2007, and that this was recoverable from the claimant.

The tribunal decision

7.	At first, the claimant’s appeal to the tribunal was handled by a local advice centre (the centre).  In its written appeal to the tribunal on behalf of the claimant, the centre pointed out:

“Despite SCC denial, [the claimant] maintains that she phoned SCC to make sure this was correct.  [The claimant] states that she was asked if her details had changed, when she said they had not she was informed it was correct.”

8.	By the time of the tribunal hearing, the claimant was represented by a firm of solicitors (the solicitors).  The solicitors produced a written submission for the benefit of the tribunal, appeared on the claimant’s behalf at the tribunal’s oral hearing (as did the claimant) and has represented her in subsequent proceedings to the Commissioner.  In the course of its submissions, the solicitors have cited three unreported decisions by Commissioners, with respect to none of which has it produced a copy of the same decision, either for the benefit of the tribunal (in relation to the first such decision, CH/1675/2005) nor with respect to the other such decisions (CH/2888/2002 and CH/2554/2002) for the benefit of the Commissioner.  This would not be considered acceptable by any court.  

9.	Having heard the claimant, the tribunal made an important finding of primary fact:

“…

8.	Following notification of the decision of 10 October 2006 the Appellant telephoned the Local Authority in order to make enquiries about her Housing Benefit situation.  She asked an officer whether or not her Housing Benefit had been correctly calculated.  The Appellant was advised that it had been.  The Appellant did not disclose to the relevant officer that her own rent liability was approximately £65 per week and that she was receiving £96 per week in Housing Benefit.”

10.	In its reasons for dismissing the appeal, the tribunal said:

“…

12.	The Tribunal finds that the Appellant could have reasonably been expected to realise that the payments were overpayments for the following reasons.  The Appellant knew her own liability for rent was about £65 per week and that she was receiving Housing Benefit of about £96 per week.

13.	The Tribunal rejects the submission that the Appellant’s enquiries of the Local Authority, in which she was told that the Housing Benefit was correctly calculated led her to reasonably believe that she was entitled to the payments, because the Appellant did not disclose to the Local Authority all relevant information and in particular the level of her rent and the Housing Benefit payment she received.

14.	The Tribunal also rejects further submissions that the Appellant reasonably believed that she was entitled to the overpayments because of the various changes in the tenancy arrangements that had occurred.  The Appellant is an experienced Housing Benefit claimant.  The Appellant did not seek, specifically, advice about the payments which would reasonably have led her to believe that she was entitled to the payments.  The Appellant failed to disclose relevant information to the Local Authority whilst she was making enquiries into the Housing Benefit award.”

Appeal to the Commissioner

11.	The solicitors submit as follows:

“The tribunal have recorded as a finding of fact that [the claimant] did not disclose to the relevant offer [sic] that her own rent liability was approximately £65 per [sic] and that she was receiving £96 per week in Housing Benefit.  This is an incorrect finding of fact as the award of benefit at the rate of £96, had been notified to [the claimant] by the council itself.  They were already aware of this fact.  There can be no failure to disclose a fact already known to them.  The council were also aware of previous awards of benefit and who was residing in the property and liable for rent payments.

In the reasons given for the tribunal decision at paragraph 13 it is stated that the failure to disclose to the Local Authority all relevant information and in particular the level of her rent and the Housing Benefit payment she received, prohibits the client from reasonably believing that she was entitled to payment she received.  It is argued that it is insufficient to simply state that failure to disclose would result in client knowing that she was being overpaid.  There is no consideration given by the tribunal to the information which the council had already in their possession.  There is no explanation for the conclusion that [the claimant] should have made more enquiries regarding the calculation of benefit, or suggested what type of enquiries she should have made.

The tribunal have stated at paragraph 14 that the appellant is an experienced Housing Benefit claimant and that she did not seek, specifically, advice about the payments.  There is no explanation of what an experienced claimant would be …  

…

The calculation letter from the council advised that benefit had been ‘re-assessed due to Rent Officers assessment’.  There is no indication that the tribunal have taken this into consideration when stating [the claimant] is an experienced claimant or questioned her on this.  [The claimant] may be experienced in obtaining housing benefit but not as to how much she would be entitled to.  She had been assured by the council that her benefit entitlement was correct and, therefore, it is reasonable for her to believe that she is not being overpaid.

The submission on behalf of [the claimant] contained a reference to a supporting case CH/1675.2005.  However, the tribunal do not appear to have considered this case as no comments have been made as to whether this has been accepted or dismissed.”

12.	The local authority responded thus:

“8.	… the Tribunal did not make an incorrect finding of fact relating to the Appellant not providing relevant details in a conversation she says she had with a benefits officer when her benefits increased.  The Tribunal found that the conversation did take place and that in that conversation the Appellant did not inform that officer of relevant information including the difference between her rent liability and the amount of Housing Benefit she was receiving.  This is consistent with the Record of Proceedings … Who originally provided the information to the Appellant and the information the Council had in its possession are not relevant to that point.

9.	… [R]eference is made to the Tribunal’s decision that the failure to disclose information in the Appellant’s conversation with the Council prohibited her from reasonably believing she had an entitlement to the overpayment.  The Tribunal’s point is that the Appellant’s awareness that she had not drawn to the attention of the benefit officer relevant information, particularly the difference between the rent and housing benefit, meant that she should have known the confirmation of entitlement could not be relied on.  Further, that in those circumstances, coupled with the other issues referred to in paragraphs 12 to 14, meant the Appellant could have reasonably been expected to have known she was in receipt of an overpayment.

10.	… [M]ention is made to consideration being given to the information already in the Council’s possession.  This does not appear relevant to the issue of what the Appellant could be reasonably be [sic] expected to know.  

11.	Mention is also made … to the Tribunal’s conclusion that the Appellant should have made enquiries regarding the calculation of benefit (which I assume is a reference to paragraph 14 of the statement).  The Appellant in her submissions to the tribunal makes reference to various changes in tenancy arrangements which led her to believe that she was entitled to the overpayment.  The point the tribunal makes is that given she did not make enquiry when these events occurred, it was not reasonable for her to reach that conclusion.  In other words, the changes, especially in the absence of specific enquiry, coupled with the other matters mentioned in the statement, did not convince the Tribunal that the Appellant could not reasonably be expected to realise she was in receipt of an overpayment.

12.	The Appellant … challenges to [sic] the Tribunal’s finding that the Appellant is an experienced Housing Benefit claimant.  The Tribunal at paragraph 3 of the statement states that the Appellant has claimed Housing Benefit since 1999 and at her current address since 2002.  This is clearly the basis of the Tribunal’s conclusion that the Appellant is an experienced Housing Benefit claimant.  The natural consequence of claiming benefits over a period of time is that the claimant becomes experienced in that activity.  The longer the claim period the more experienced the claimant becomes.  The Tribunal does not go on to suggest that the Appellant as a consequence of this experience is an expert in calculating benefit.  The point being made is that given the Appellant’s experience in claiming benefits, along with the other issues mentioned (including the significant difference between rent liability and Housing Benefit received), she could reasonably have been expected to have known she was being overpaid.

13.	With reference to paragraph 3, while it is acknowledged that the statement of reasons makes no reference to the reasons detailed in the decision letter it does not materially effect [sic] the Tribunal’s decision.  The Tribunal’s decision is that despite the errors and incorrect information provided by the Council, the Appellant, given the significant difference between the rent liability and the benefit received and the other issues mentioned in the statement, could reasonably have been expected to know she was in receipt of an overpayment.  

14.	At paragraph 4, the Appellant mentions that there is no reference to decision CH/1675/2005 in the statement.  The issue referred to in that decision was the confirmation of entitlement given by the Council in a telephone conversation and its impact on what the Appellant in that case could reasonably have been expected to realise.  The Tribunal in this case clearly had regard to this issue.  At paragraph 13, the Tribunal, in reaching its decision, refers to the entitlement information provided by the Council.  I note that CH/1675/2005 also involved an extended award of benefits which the Commissioner considered may have had an impact on the Appellant’s understanding.  I further note that the appeal was supported by the Local Authority on the basis of a different error and referred back to the Tribunal.  Further because tribunals are required to apply Commissioners’ decisions there is no need for a tribunal to indicate in its statement whether it agrees with a particular Commissioner’s decision.”

13.	In response, the solicitors reiterated that it would be reasonable for the claimant to rely on the outcome of the telephone call, in the context that she had supplied all changes of circumstances and a verification visit had taken place.  At this stage, CH/2888/2002 and CH/2554/2002 are cited by the solicitors.  The solicitors’ further submission concludes:

“It is impossible that the Appellant would have considered it necessary to question the Local Authority on what their view of her benefit claim was to ensure that they were fully aware of her situation.”

14.	In a further reply, the local authority notes that CH/2888/2002 and CH/2554/2002 were both cases in which recoverability of an overpayment by a local authority was upheld.  With respect to the latter, the local authority says:

“The Commissioner indicated that the issue was what could reasonably be expected of the claimant.  Further that what a claimant could reasonably have been expected to realise is a question of fact.  That principle was followed by the tribunal in this case, who found that on the facts, including the difference between the Appellant’s rent and her Housing Benefit, that she could have reasonably been expected to have realised that she was in receipt of an overpayment.”

My conclusion based on the arguments above

15.	I have very carefully considered all the arguments made in the present case.  Undoubtedly, the administrative processes of the local authority were extremely poor in the present case.  The overpayment was made entirely without fault on the claimant’s part and due to blameworthy error by the local authority.  Nevertheless, in order to avoid a recoverable overpayment, the claimant had to prove that she could not reasonably have been expected to have realised that an overpayment was being made; moreover, as was held in CH/2554/2002 at paragraph 9:

“It is not relevant whether the claimant could reasonably have been expected to realise the amount by which she was being overpaid … what matters is whether the claimant could reasonably have been expected to realise that the amount she was receiving definitely contained some element of overpayment.”

16.	Moreover, what is in issue is what the claimant could or could not reasonably have been expected to realise, having regard to all the circumstances.  That is a question of fact, and I can set aside a tribunal’s determination of fact as erroneous in law only if the tribunal drew conclusions which no reasonable tribunal could have drawn, having regard to the evidence.  I am not able so to hold.  

17.	Recoverability in HB cases is not based on any misleading of a local authority through misrepresentation or failure to disclose.  Such is not a necessary legal constituent, as it is in Social Security cases.  It is, therefore, irrelevant that there can be no failure to disclose a fact already known to the recipient.  What the local authority did or did not know may or may not be pertinent to the crucial issue of whether the claimant could have reasonably been expected to have known that she was in receipt of an overpayment.  Furthermore, what a claimant did or did not disclose is also not legally critical.  

18.	However, there are instances, as here, where a claimant’s failure to draw relevant information to the attention of the local authority is evidentially relevant to whether or not she could reasonably rely on its answer.  Usually, a clear statement by a local authority that a claimant’s HB has been correctly calculated is enough to mean that a claimant thereafter reasonably forms the view that there has been no overpayment.  But all is crucially dependent on the facts of the individual case.  The tribunal found that the claimant knew that her own liability for rent was about £65 per week but that she had been told she was to receive £96 per week in HB.  In that context, it was not enough simply to ask the officer in the local authority whether or not her HB had been correctly calculated and to confirm that her own circumstances had not altered; the situation additionally required that she drew these facts to the specific attention of the officer to whom she spoke.  This is because any reasonable person in the claimant’s circumstances, and having regard to her benefit history, would know that, where the other joint tenant was also responsible for half of the rent charged, it was highly unlikely that she could receive in HB a sum almost equivalent to the rent on the whole house.  

19.	The tribunal concluded, accordingly, and there was nothing wrong with its conclusion, that in such a context it was insufficient for the claimant to rely on the advice that her HB had been correctly calculated without first specifically drawing the advice giver’s attention to the extraordinary background; failing any attempt to seek such clarification, the claimant did not show that she could not reasonably have been expected to realise that there was an overpayment.  Looking at the whole picture, it was not an error of law for the tribunal to conclude that, in the unusual circumstances of the amount of the payment made to her, it was unreasonable of the claimant to rely, without more, on the first reaction of the local authority; this was made by an officer in response to the claimant’s telephone query, which query omitted highly relevant facts which would have appeared as such to any reasonable person.

20.	The same point answers the lack of any mention in the tribunal’s reasons of the incorrect basis for the increase in HB given to the claimant in the notification letter.  What was said by the local authority in that letter was undoubtedly wrong.  This does not detract, however, from the crucial matter that the difference between the rent liability and the benefit received was so huge and significant that any reasonable claimant would have realised that there had been a mistake and that she was in receipt of an overpayment.

21.	As far as the lack of any reference by the tribunal to CH/1675/2005 is concerned, I find it difficult to see how a tribunal errs in failing to address a judicial case cited in support when no copy of the said case is ever produced.  In any event, none of the cases cited on behalf of the claimant at any stage of the proceedings are directly relevant.  It may be that the claimant in CHB/1675/2005 could not reasonably be expected to have realised he was being overpaid HB on the basis of what he was being told in the course of the telephone conversation with the council tax section; as I have already pointed out, all must depend on precisely what a claimant is told and what is the background to the conversation.  In CH/2888/2002, the Commissioner held that the only permissible conclusion from the circumstances in front of him, a repeated enquiry as to when HB was to be reduced, was that the claimant should therefore have known in that case that he was being overpaid.  CH/2554/2002 emphasises how important it is that a tribunal looks at all the information that a particular claimant has about the HB scheme in determining whether, as a matter of fact, such a claimant could reasonably have realised that there was a mistake in the calculation of her benefit and that that mistake was to her advantage.  In the present case, given that the claimant’s previous HB entitlement had always been based on a proportion of the eligible rent, according to how many joint tenants there were, she must have realised that there was an overpayment once she started to receive HB based on 100% entitlement, even although there remained two relevant joint tenants, including herself.  

Summary

22.	My decision is therefore as set out above.  For the stated reasons, in my view, no error of law is demonstrated and therefore the tribunal’s decision stands.  The tribunal did not apply any wrong legal test.  It made adequate findings of fact, having regard to the totality of the evidence before it, and sufficiently explained why it took the view of the evidence it did.  There was no irrational assessment of any evidence before it, no indication of any unfair hearing nor of a major procedural breach.  In my judgement, the tribunal paid regard to all the relevant information in the case (it is not required to refer to every item of evidence in repetition of such evidence, because it is clear from the tribunal’s overall reasoning that it has taken that information into consideration) and took no account of irrelevant factors.  In no respect was its decision perverse.

					(signed)
					L T PARKER
					Deputy Judge of the Upper Tribunal
					Date:  7 November 2008