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[2008] UKUT 31 (AAC) (04 December 2008)

 


IN THE UPPER TRIBUNAL Appeal No. CH/765/2008

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Charles Turnbull

1. This is an appeal by the London Borough of Islington ("the Council"), brought with my permission, against a decision of an appeal tribunal sitting at Fox Court on 19 November 2007. For the reasons set out below that decision was in my judgment wrong in law and I set it aside. In exercise of the power in section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I substitute for the Tribunal's decision a decision in the same terms as that made by the Tribunal, but with the substitution of the following for the second paragraph of the Tribunal's Decision Notice:

"The decision of the Council on 28 June 2007 that the arrears of housing benefit referred to below could not be paid to the landlord in accordance with the terms of the decision issued on 9 May 2007 is set aside."

2. On 12 April 2007 the Claimant made a claim for housing benefit in respect of the rent payable for accommodation let to him by Family Mosaic (a charitable industrial and provident society and a registered housing association). The claim requested that payments of benefit be made direct to Family Mosaic. There was in addition a claim that payment be backdated to August 2006.
3. On 16 April 2007 the Council made a decision awarding payment of housing benefit in the sum of £91.76 per week from that date. The benefit decision notice stated that payment would be made by "crossed cheque", which has been taken as meaning that the decision was that payment under that decision (i.e. in respect of future payments) would be made to the Claimant.
4. Payments of 3 weeks' benefit were made to the Claimant pursuant to that decision, but following complaint by Family Mosaic the Council on 9 May 2007 revised the decision of 16 April 2007, the revised decision being that payment would from then on be made to Family Mosaic. That revised decision was plainly correct, because, as the Tribunal found, the Council was required by regulation 95(1)(b) of the Housing Benefit (General) Regulations 2006 to pay the housing benefit to the landlord: there were more than 8 weeks' arrears of rent and it was plainly not in the overriding interest of the tenant that payment should not be made to the landlord.
5. On 9 May 2007 the Council made a further decision that the award of housing benefit should be backdated to 21 August 2006 and that payment of arrears of benefit amounting to £3119.84 in respect of the period 21 August 2006 to 15 April 2007 should be made "direct to Family Mosaic". (The benefit decision notice gave 21 January 2007 as the end date for that award, but that was clearly a clerical error, as the total amount of the arrears took the award way beyond that date, and in a subsequent letter of 5 July 2007 (p.18) the Council confirmed that the arrears were in respect of the period 21 August 2006 to 15 April 2007).
6. However, owing to what the Tribunal found was an administrative error by the Council, on 10 May 2007 a cheque for £3119.84 in respect of the backdated payments was posted to the Claimant, and subsequently presented by him. He did not use the money to satisfy his liability to Family Mosaic for arrears of rent.
7. In response to a request from Family Mosaic that the arrears of housing benefit should be paid to it, the Council on 28 June 2007 said that it could not do so because they had already been paid to the Claimant and the Council could not lawfully make payment of the same benefit twice.
8. On 25 July 2007 Family Mosaic purported to appeal against what it said was the Council's decision "not to award Family Mosaic the housing benefit that was paid to [the Claimant] in error."
9. On 27 July 2007 the Council reconsidered the position, but concluded that

"Whilst the Benefits Service accept that an error has been made in making payments of Housing Benefit directly to [the Claimant] when it was requested that payments of benefit were made to Family Mosaic, it must be confirmed that benefit has been properly paid and there is no provision within the Housing Benefit Regulations for a duplicate payment of housing benefit to be made.

I should point out that Housing Benefit was properly paid for this period, and therefore there can be no overpayment for the above period, and subsequently no second payment of Housing Benefit entitlement is permitted. This has been confirmed in [R(H) 1/08 and R(H) 2/08]"

10. The Tribunal purported to allow Family Mosaic's appeal. Its Decision Notice reads as follows:

"The Housing Benefit appeal is allowed.

The decision of [the Council] in relation to Housing Benefit issued on 9 May 2007 is revised.

The payment of backdated Housing Benefit for the period 21 August 2006 to 15 April 2007 amounting to £3119.84 in respect of [the Claimant's] tenancy at [address stated] shall be paid to the landlord, [Family Mosaic].

This is because [the Council] must make such a payment to the landlord where the requirements of regulation 95(1)(b) of the Housing Benefit Regulations 2006 are satisfied.

The facts indicate that the requirements are satisfied. In particular, [the Claimant] was in arrears of an amount equivalent to 8 weeks or more of the amount he is liable to pay his landlord as rent. It was not in the overriding interests of [the Claimant] not to make direct payments to the landlord."

11. As regards the Council's contention that it could not make a second payment of benefit where payment had already lawfully been made to another person, the Tribunal stated as follows in its Statement of Reasons:

"37 The Tribunal accepts the principle stated in [R(H) 2/08] that no second payment of housing benefit can be made to a landlord once the claimant has been lawfully paid housing benefit for the period in question.

38. The Tribunal concluded that [the Council] did not lawfully pay arrears of Housing Benefit on 10 May 2007 to [the Claimant] amounting to £3119.84 for the period 21 August 2006 to 21 January 2007.

39. This is because [the Council] did not revise or supersede the decision of 9 May 2007 which stated that the payment would be made to the landlord. This decision was consistent with the requests in the April 2007 claim form and with subsequent reminders made to [the Council] by the landlord. If [the Council] had made a new decision on or after the decision made on 9 May 2007 that payment would be made direct to [the Claimant], the landlord would have had a right of appeal against that decision (see paragraphs 21, 42 of [R(H) 2/08]."

12. In my judgment the Tribunal's reasoning in the passage which I have just set out was plainly correct. The reasoning behind Mr Commissioner Jacobs' decision in R(H) 2/08 was that if housing benefit has been paid to A in accordance with Decision 1, and then that decision is revised by Decision 2 so as to make the benefit payable to B, the amount which has been paid to A under Decision 1 cannot be paid to B, because the amount paid to A is required by regulation 98 of the 2006 Regulations to be offset against the arrears which would otherwise be payable to B under Decision 2. See paragraphs 38 and 39 of R(H) 2/08.
13. However, reg. 98 applies where "a person has been paid a sum of housing benefit under a decision which is subsequently revised or further revised." That plainly does not apply in the present case, for two related reasons. First, it is in my judgment implicit in regulation 98 that it applies only where the first payment is made under and in accordance with the terms of the first decision. That was not of course so in the present case. The payment should have been made to Family Mosaic, but owing to an administrative error it was made to the Claimant.
14. Secondly, by its express terms reg. 98 applies only where the first decision is revised, and payment is then made in accordance with the decision as so revised. That is not what happened in the present case. The decision of 9 May 2007 that payment of the arrears should be made direct to Family Mosaic was not revised because there was no need to revise it. The problem was not that the decision of 9 May 2007 needed revising, but simply that owing to an administrative error payment had not been made in accordance with its terms.
15. In its submission in reply in this appeal the Council states that "there cannot, therefore, be a second payment of Housing Benefit for a period that entitlement has already been correctly determined and paid." However, the point is that benefit was not correctly paid in accordance with the decision of 9 May 2007. The Council's submissions in this appeal in my judgment ignore the fact that the identity of the person to whom benefit was to be paid was an integral part of the decision (as indeed Mr Commissioner Jacobs made clear in paras. 36 and 37 of R(H) 2/08).
16. Although it is not a matter which was within the jurisdiction of the Tribunal (or is within my jurisdiction), it is in my judgment clear that the amount paid to the Claimant was an "overpayment" within the definition in reg. 99 of the 2006 Regulations. Whether that overpayment is recoverable under reg. 100 would seem to depend on whether the Claimant could reasonably have been expected to realise that it was an overpayment.
17. The only matter about which I have had doubt is whether there was any decision by the Council which was capable of appeal to the Tribunal. It is arguable that the only relevant decision was the decision of 9 May 2007 that the arrears should be paid to Family Mosaic (a decision against which Family Mosaic could not of course appeal). It is arguable that the Council's subsequent refusal to pay those arrears to Family Mosaic was not the result of a separate appealable decision, but was simply a failure by the Council to make payment in accordance with its decision of 9 May. If that is correct, Family Mosaic's remedy did not lie in an appeal to an appeal tribunal, but in taking such action as was available to it either to require the Council to carry out the terms of the decision of 9 May, or for compensation on the ground of it not having been carried out. That is, indeed, the view which the Secretary of State, who was joined as a party to this appeal at his request, supports.
18. However, I have come to the conclusion that there was a decision by the Council capable of appeal by Family Mosaic. Under para. 6(1) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 there is a right to appeal to an appeal tribunal against "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 ….." Under para. 1 of Schedule 7 "relevant decision" is defined as including "a decision of a relevant authority on a claim for housing benefit …"
19. The Council's stance on 27 June 2007 (see para. 7 above) was that it could not lawfully pay the arrears to Family Mosaic because they had already been paid to the Claimant. That was tantamount to a decision that, despite the terms of the decision of 9 May 2007 that the arrears be paid to Family Mosaic, the latter had ceased to be entitled to be paid them because payment had subsequently been made to the Claimant. I think that that can be regarded as a decision made "on an award of housing benefit." It does not seem to me that any harm is done by giving a fairly wide construction to those words.
20. I therefore consider that the Tribunal was right to assume jurisdiction. Indeed, I would not want to leave this case without paying tribute to the admirably clear findings of fact and analysis in the Tribunal's Statement of Reasons.
21. However, the Tribunal's decision was in my judgment wrong in law in that the second paragraph of the Decision Notice stated that "the decision of [the Council] in relation to Housing Benefit issued on 9 May 2007 is revised." However, for the reasons which I have given the decision of 9 May was not under appeal to the Tribunal. Family Mosaic was not complaining about the terms of that decision, but about the fact that it had not been carried out. In my judgment what was under appeal was a decision on 27 June 2007 that Family Mosaic could no longer be paid because payment had been made to the Claimant. For that reason my decision is as set out in paragraph 1 above.

(Signed on the original) Charles Turnbull

Judge of the Upper Tribunal

4 December 2008