Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CH/2735/2009

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Mark

 

Decision: The appeal is dismissed.

 

 

REASONS FOR DECISION

 

1.     This is an appeal by the West Somerset Council from a decision of the First Tier Tribunal allowing the appeal of the claimant from a decision of the council said to have been issued on 23 April 2007. In fact the only document of that date is a letter to the claimant stating that her housing benefit award has been cancelled from 24 September 2006 because she had not provided information requested on 26 January and 4 April 2007, and that as a result of this cancellation an overpayment had occurred which would be notified to her separately – p.4 of the file. The actual decision notice is at p.18 of the file and is dated 24 April. It includes a statement that the claimant might qualify for some benefit based on her new circumstances and that if the enclosed application form were to be returned within 4 weeks of 24 September 2006 any new benefit could start from the day after that date. The decision notice in respect of the overpayment, at pp.20-21 of the file, relates to the sum of £1205.54, overpaid at the rate of £86.11 per week from 25 September 2006 to 14 January 2007, and is dated 24 April 2007.

 

2.     The only relevant letter to the claimant on the file which appears to have sought information is dated 25 January 2007 (p.6). It advises the claimant that the council had been notified that her entitlement to income support had ended and that her housing benefit and/or her council tax benefit had therefore been suspended “to prevent any further overpayment”. If she wanted to claim benefits, she was asked to complete and return an enclosed application form enclosing documentary evidence of her income and capital. If she did not provide that information within 4 weeks, her claim would “be deemed as defective and will be cancelled.” There was no warning in the letter that the “cancellation” would be retrospective.

 

3.     The “cancellation” appears to have been effective as a supersession of the award of housing benefit from 24 September 2006. The overpayment decision has been appealed on the ground that it was caused by official error. The claimant explained that at the beginning of September 2006 she had visited the job centre and the council’s offices at Blenheim Road and informed the clerk that she was going to university and that income support would cease on 25 September 2006. She was not asked to complete any forms by the council’s officials. Benefit continued to be paid to her landlord but as she was going to university and she could not reasonably be expected to know that she was being overpaid benefit.

 

4.     The letter containing this explanation was dated 31 May 2007 and bears a receipt stamp of 15 June 2007. It took the council until mid-November to respond that it had no record of any such visit to the Blenheim Road office, which I note from the letter appears to have been the address from which the November letter was written. The writer, an appeals officer with the council, also stated that she had spoken to the DWP that day, and had been told that the claimant had notified the job centre on 19 September 2006 that she might be returning to university, and that the job centre had notified the DWP which had suspended income support and asked for confirmation from the claimant that she had started university and had sought details of her income. The claimant had not replied, and income support had been terminated on 18 January 2007 from 24 September 2006.

 

5.     That letter asserted that the claimant did not tell the council at the time, although she had signed a declaration that she would tell the council promptly about any changes which may affect her benefit. It also pointed out that the law said that she had a duty to tell the council in writing, although she did not then suggest, and the council has not subsequently suggested, that the council ever told her that any notification had to be in writing, or that she was aware of this.

 

6.     The DWP records at p.7 of the file has 3 entries for 19 September 2006. The first reads “STUDENT LOAN DETAILS..MLR”. The second reads “SET TO AVOID O/P & LETTER TO CUST TO INFORM OF SUSP & REQ”. The third reads “**** JCP25 RECD – CUST STATES RETURNING TO UNI?.. SUSPENSE”.

 

7.     There was no other information or evidence from either the job centre or the DWP. It is plain that the entries made by the DWP reflected what somebody understood that the DWP had been told by somebody at the job centre. There is no evidence whether the person at the job centre who had passed on the information had been the person who received it from the claimant. Nor is there any evidence that the person who recorded the information was the same person who received it. There is no indication that the person whom the appeals officer spoke to at the DWP was the person who made the entries, or was doing anything more than convey that person’s understanding of what the entries meant. There is no evidence that that person’s understanding was correct.

 

8.     An issue has arisen on this appeal as to whether the claimant did only tell the job centre, and hence also the council, that she only might be returning to university. I find this information of no real evidential value on this question. It is second hand at best, and is then interpreted by an anonymous source. It is wholly consistent with the claimant having told the job centre that she would be returning to university but some doubt having arisen as the information was passed from hand to hand, or with the question mark being a mistake. The reference to student loan details is unexplained. It appears to me to be improbable in the extreme that by 19 September the claimant had not reached a decision as to whether to return to university a week or two later.

 

9.     Further, I note that the council’s presenting officer at the hearing presented the case to the tribunal on the basis that the DWP had said that the claimant had gone there to tell them that she was going to become a student nurse, not that she might be going to become one (see the transcript of the record of the proceedings at p.97 and the photocopy of the original at p.73).

 

10. There was also in evidence a letter dated 20 November 2006 from a Mr. P. Slade, a visiting officer of the council, addressed to the claimant and headed Housing/Council Tax Benefit. The letter stated that he had called at her home that day at 10.30am to speak to her and found no one at home. It required her to telephone him at “the above address” during normal office hours to make an appointment to see him and warned that if he did not hear from her within 14 days payment of her benefit may be suspended and her claim may be cancelled. A manuscript note indicates that benefit was not suspended as the claimant was a lone parent on income support and it was proposed to re-visit her early in the new year. There is in fact no “above address” on the letter, although there may have been an address below being the Blenheim Road address (and telephone number) to be found on the other correspondence from the council to which I have referred.

 

11. The claimant provided a witness statement in which she explained that she was the lone parent of four children, the youngest having been adopted by her at 11 days old in January 2006. At the time of the statement she was a third year student nurse. She noted the DWP entries and pointed out that she was starting at university not returning to it, having previously having been at college, and that there was no question but that she was going (so why the question mark?). She was told that her income support would stop the following week. I would add that this must have been on the basis that she would be going to university by then. In her oral evidence to the tribunal she also stated that she had taken her university acceptance letter and details regarding a student bursary to the job centre and showed them these documents. She did not know benefit had only been suspended and genuinely believed that it had stopped.

 

12. In the same week, she went to the council’s offices in Blenheim Road to tell the council that her income support was coming to an end. The person to whom she spoke was something to do with council tax. She told the person that she was going to university. She knew that as a student nurse she would be exempt from council tax. She told the person to whom she spoke that her income support was coming to an end. The officer called up her details on the computer screen.

 

13. When her housing benefit continued to be paid, she assumed this was OK. It had been paid when she had previously been on a college full-time Access to Nursing course, and she just assumed there would be no problem. She had never seen the letter dated 20 November 2006 until it appeared on the appeal file. If she had seen it before, she would have panicked and responded immediately.

 

14. She did receive the letter dated 25 January 2007 and assumed that the council had only just caught up with dealing with the information she had provided in the previous September. She did not take on board the reference to her having been overpaid, and did not bother to renew her claim because she was about to give up her tenancy and move in with her mother so that she could look after the children while she was doing her nursing course. She told the council when she was moving and the council then wrote to her at her mother’s address.

 

15. She only learned about the overpayment claim from a council worker when collecting her children from school. She went to the council offices and saw somebody whom she believed to be Paul Slade (presumably, although there is no evidence on the point, the same Mr. P. Slade who was the author of the letter dated 20 November 2006). Mr. Slade is said to have looked up her details on the computer and become aware that there was some kind of error and that she had been in often. He asked if she had been given a coloured form to inform the council that her income support had stopped and she told him “no”. He asked why she had not asked to see somebody from the housing benefit section and she said it was because she had already seen somebody from council tax. He said that she should have notified both, but she had not realised that, nor had she been told that by the person to whom she spoke in September 2006.

 

16. She was then given the option by Mr. Slade of appealing or of applying for backdated housing benefit, but that if she did seek backdating that would ruin her chances of winning her appeal because it would look as if she was in the wrong.

 

17. No other evidence was adduced by the council. The claimant gave evidence at the hearing to the same effect as in her witness statement and was questioned by both the tribunal and the council’s presenting officer.

 

18. The tribunal accepted the claimant’s evidence as truthful and to the extent that there was any conflict between what the council asserted and what the claimant stated in evidence, the tribunal preferred the claimant’s account. It concluded that the overpayment was the result of official error to which the claimant had not materially contributed.

 

The grounds of appeal

 

19. The council contends that the decision that the overpayment was due to official error was incorrect in law. It is then said that the tribunal was wrong to accept the evidence of the claimant that she did not contribute to the overpayment.

 

20. The first ground of appeal put forward by the council is that the tribunal failed to make a finding of fact in relation to the home visit made on 20 November 2006. There is a complaint that the tribunal accepted the word of the claimant that she did not receive this letter, but should have examined this issue in more detail.

 

21. This contention is wholly without merit. Although the council is now asserting that the letter was hand-delivered on 20 November 2006, there was not a shred of evidence as to this before the tribunal. The council had ample opportunity to put in evidence before the tribunal of the assertions that it now makes, but chose not to do so. Further the council was represented by a presenting officer who was able to question the claimant as to this letter had she wished. Nor indeed does she appear to have relied on it as of any real significance. In the absence of any contrary evidence as to the delivery or posting of the letter and of any challenge by the council to the claimant’s evidence, the tribunal was entitled to accept the claimant’s evidence that she never saw it and in my judgment it was correct to do so.

 

22. In the circumstances, the tribunal was correct to reject the claim that the claimant materially contributed to the overpayment by not replying to the letter, and gave adequate reasons for its conclusions.

 

23. I would add that if I had set aside the decision of the tribunal, I would have treated Mr. Slade’s statement with considerable reserve. He had not given the statement to the tribunal and had not attended to give evidence. It seems to me inherently unlikely that he would have any specific recollection in August 2009, when his statement was signed, of any specific visit almost 3 years earlier and that he was much more likely to have been relying on his normal practice in such cases. If so, that would leave open the possibility that he had not followed that practice on this occasion, and also that he may have gone to the wrong house. In addition, he has provided no response to the allegation by the claimant that he misled her as to her rights when she saw him in 2007. These would have been matters that would have needed to be investigated by a new tribunal and it would have been necessary for him to attend to give oral evidence and be subject to questioning.

 

24. The council also relies upon the provisions of regulation 88(1) of the Housing Benefit Regulations 2006 which, as in force in September 2006, provided that the claimant was “under a duty to notify that change of circumstances by giving notice in writing to the designated office”. Later amendments permit other methods of notification in specified circumstances, but they did not apply in September 2006, The designated office is defined by regulation 2(1) of those Regulations as the office designated by the relevant authority for the receipt of claims to housing benefit. It also contends that notification to the council tax department was not notification to the housing benefit department.

 

25. The council is correct that the claimant had a duty to notify the designated office in writing. On the other hand, it had never, so far as the evidence goes, told the claimant that a notification had to be in writing. Both the form referred to at page 6 of the written submissions to the tribunal and the notices at the foot of pages 15-21 of the file do not specify any particular form of notification, and when the claimant went to the council offices to report the change of circumstances, she was not told by the council tax officer that she saw either that she should put the information in writing or that she should separately inform the housing benefit section. I note also that if, as appears to be the case, the offices to which she went were the designated offices for both council tax and housing benefit, then a single letter to that office would appear to have sufficed.

 

26. It is self evident that claimants need help to know what they are to do to comply with the rules as to benefits. That is why they are given instructions as to what they are to do if there is a change of circumstances. In this case the council failed to tell the claimant that her information as to change in circumstances had to be in writing, and when she went to their offices to give them the information, a council officer failed again to advise her to put it in writing or, if it was necessary to do so, to provide the same information to the housing benefit section. That was a mistake by the council acting as such, and it cannot be said that the claimant in any way caused or materially contributed to that mistake.

 

27. In this context, I note that in regulation 100 of the Housing Benefit Regulations 2006 the questions are (1) whether the overpayment was caused by a mistake by the relevant authority, and (2) whether the mistake was caused or materially contributed to by, in the present case, the claimant.

 

28. The errors in the present case were the failure at any time on the part of the council, so far as the evidence before the tribunal or indeed before me goes, to advise the claimant that changes of circumstances had to be notified in writing and more particularly the failure of the officer of the council to whom the information was given in September 2006 either to pass on or act on that information or to tell the claimant that she needed to put it in writing. I would add that had the officer acted properly, he would have ensured that both that the information was properly provided and that the claimant was immediately able to provide full information as to her means so that an income based award could be considered. Instead, when Mr. Slade became aware of the position in the following year, he actively discouraged the claimant from trying to have the original superseding decision revised on the ground that the claimant’s income may have still been so low for all or part of the time as to entitle her to benefit, telling her, incorrectly and so far as I can see without any basis whatsoever, that to do so would adversely affect her appeal.

 

29. I have been referred to R(H) 10/08, where it was held that for an omission to pass on information to the benefits service amounted to an official error, it would have to be based on either a reasonably based expectation that the information would be passed on to the benefits service or the existence of internal arrangements or practices for passing on information. That was a case where the information was given to a district housing office, not to the office administering council tax and housing benefits. Here the information was communicated to the benefits service, and the errors were those of the benefits service in failing at any time to require the information to be provided in writing, or to properly record or pass on the information within the office. Those errors were in no way induced by the claimant, who was complying with the instructions she had been given by the council.

 

30. The second question is whether the overpayments were caused by the errors of the council or were the results of the claimant’s failings - see R(H) 10/08, para.30, where is was pointed out that “the issue should be approached by posing the broad common sense question as to what was the substantial cause of the overpayment: see R (Sier) v Cambridge City Council Housing Benefit Review Board [2001] EWCA Civ 1523 per Simon Brown LJ at [30]-[31], as explained in CH/3083/2005 paragraph 38”. The same approach was adopted in SN v London Borough of Hounslow [2010] UKUT 57 (AAC).

 

31. It seems to me that the tribunal was clearly correct in concluding that the overpayment arose as a result of official error, the substantial cause of the overpayment being as described above.

 

32. In its written reply on this appeal, the council also seeks to assert that the claimant failed to mention her income support ending at a meeting on 6 October 2006 in the course of which she had agreed to pay £40 a month off council tax arrears. I fail to see the relevance of this. The meeting was concerned with arrears and the claimant had already disclosed the end of her income support. In any event, the evidence of the claimant at p.97, accepted by the tribunal, was that the claimant had offered to pay the money out of her own pocket rather than from income support because income support was not payable and that she would have told them this.

 

33. Three further matters are raised by Judge Lane in giving directions on this appeal. First she notes that the claimant did not report her change in income from November 2006, when she began to receive her bursary. However, but for the council’s error in September 2006, the question of the bursary could have been dealt with in considering whether the claimant’s limited means entitled her to housing benefit despite the loss of income support. This entitlement would also have had to be considered had the claimant disclosed to the council, as she should have done, that payment of the bursary had commenced in November 2006. The claimant was not entitled to assume as she did that it would not be taken into account. That was a matter for the council. In any event, I note that in the record of proceedings the claimant is noted as having responded to questioning by the presenting officer by stating “I didn’t provide the evidence of the student bursary because I wasn’t asked to. I had told the man I was a student and that I had a bursary.” It is unclear whether this information was given to the man at the job centre or the man at the council, but if the presenting officer had wished to do so, she could have questioned the claimant further about this.

 

34. Also, as a result of the council’s error, the claimant could still have provided the information orally at its offices, and in any event (a) the bursary may have been disregarded as a charitable or voluntary payment under schedule 5, paragraph 14 of the Housing Benefit Regulations 2006, (b) there would have been potentially complex questions as to how the claimant’s average weekly income was to be calculated if, as it would seem, sums had been paid in arrears, (c) the claimant may well have been able to raise issues as to the benefit to which she would still have been entitled had full disclosure been made in November which could and should have been dealt with in September but for the council’s mistakes, and which could have extended beyond 14 January 2007 until she left the rented property to live with her mother, and (d) the question of the student bursary and the delay in its payment was raised in the submissions of the claimant’s representative at the foot of p.55, in paragraph 2 of the claimant’s statement at p.56 and in her oral evidence to the tribunal without any issue being raised by the council.

 

35. A proper investigation of those issues would have required an adjournment and further oral evidence, disclosure of documents and written submissions, and it is far from clear that it would have affected the ultimate outcome. The total resulting overpayment was not large and it appears to me that the tribunal, had it addressed the question, could sensibly have concluded that it would not be an appropriate use of public funds and of its own time to engage in this investigation of an issue which could have been, but was not, raised by the council. It does not appear to me that there was any error of law on the part of the tribunal in failing to investigate this matter.

 

36. The council has never sought to rely on this non-disclosure, and it could in no way justify the overpayment decision that had been made. It was not an issue raised on the appeal and it does not seem to me that the tribunal can have been in error of law in disregarding it.

 

37. Secondly, Judge Lane commented that the tribunal has arguably not provided sufficient reasons for rejecting what she describes as a significant body of documented evidence from the council. I am bound to say that on analysis the documented evidence is not significant for the reasons I have given. The letters received from 26 January 2007 onwards are not, of course, relevant, despite the reliance which the council has sought to place on them in this appeal, as they were only sent after the overpayments had already been made.

 

38. Finally, Judge Lane questioned whether the tribunal had failed in its inquisitorial duty in failing to require the council to produce notes which accompany claim and review forms, and notifications of awards, which, as she points out, generally include instructions about the specific office to which changes of circumstances and types of changes which must be reported. She commented that the council had not helped itself by failing to produce these. I note that the council has not responded to the hint by producing any further documents. In any event, the council was represented, and the whole case proceeded before the tribunal on the basis that the office at which the claimant made her disclosure was the right office for housing benefit purposes, and indeed this was stated and not contradicted at the tribunal hearing (see p.99 of the typed copy of the transcript). I do not consider that the tribunal was under any duty to protect the council from itself by adjourning the case to enable these documents to be produced, and there is no suggestion by the council even now that if the documents had been produced they would have had any effect on the outcome of the case. The only additional document it has sought to produce is the short statement from Mr. Slade, which appears in the tribunal file only, and which deals only with the letter of 20 November 2006.

 

(signed) Michael Mark

Judge of the Upper Tribunal

 

26 May 2010