IN THE
UPPER TRIBUNAL Case
No. CH/18/2014
ADMINISTRATIVE
APPEALS CHAMBER
Before Judge Mark
Decision: The appeal is dismissed.
REASONS FOR DECISION
- This case
concerns an alleged overpayment of council tax benefit of £9.62. It
arises because the council has construed certain regulations to mean that
although the claimant’s income was in fact £71 per week, he was to be
treated for 5 days as being in receipt of an income of £142 per week. The
claimant, who was born in 1969, was diagnosed with a brain tumour in
September 2012 and as a result obtained an award of contribution based ESA
in place of his previous award of jobseeker’s allowance. The award of
jobseeker’s allowance ceased on 2 October 2012 and the award of ESA
commenced on 3 October 2012. The amounts awarded were the same. The
claimant’s income was unchanged, but the council decided that until the
start of the following week it was obliged to treat the claimant as being
in receipt of both benefits. It reached this conclusion by relying on regulation
50 of the Council Tax Benefit (Persons who have attained the qualifying
age for state pension credit) Regulations 2006, ignoring the fact that the
claimant was in his early 40’s and was nowhere near that age and that
regulation 5 of those regulations spelled out, in case the title was not
sufficiently clear, that those regulations only applied to persons who had
attained that age.
- The result,
even had it been legally correct, was patently unfair, and it would have
been a simple matter for the council to decide that it would write the sum
off and inform the claimant of this. Instead, when the claimant appealed,
it fought the appeal, and sent a presenting officer to the tribunal. When
it lost the appeal, rather than accept a patently fair result, it then
appealed further to the Upper Tribunal on this technical point of law.
The cost to the council alone must have far exceeded the potentially lost,
and undeserved, revenue of £9.62, and the cost to the tribunal service of
dealing with these appeals must comfortably run into four figures. It is
a prime example of the way that lack of common sense can waste public
funds.
- I note that
at the hearing, according to the record of the proceedings, the presenting
officer stated “We are just following regulations” and “We will consider
discretionary payments, but can’t do it where there is a nil entitlement
and we can exercise a discretion not to recover an overpayment.” This is
a pathetic excuse for wasting public funds and, in any event, does not
explain why it made this appeal when it had a decision of the tribunal
that it could rely on. If the discretion had been exercised and the
claimant informed, a lot of time and money would have been saved.
- The change
of circumstances by which the claimant moved from one benefit to another
was plainly a change of circumstances that required to be notified, but
with no change as to his income, it did not on its face suggest any need
for any change in benefit entitlement. The council, however, relied on
regulation 7(2)(i) of the Housing Benefit and Council Tax Benefit
(Decisions and Appeals) Regulations 2001 (the 2001 Regulations) which,
with certain exceptions, provides that a council may supersede an earlier
decision awarding entitlement when the claimant has subsequently become
entitled to an award of a variety of benefits including ESA.
- It then
chose to supersede the original decision, although I am left unclear why
it did so, given that it had a discretion not to do so and it appears to
me that the only rational course when the claimant’s income remained
unchanged was not to do so.
- Having
superseded the original decision, by a decision made in November 2012, it
then made an overpayment decision in respect of the 5 days period to which
I have referred and a new award of the same amount of benefit from the end
of that 5 days period. Its reasoning, as put to the tribunal (by which
time it was relying on the Council Tax Benefit Regulations 2006 instead of
the regulations for those who had attained state pension age), was that
(a)
The superseding
decision took effect from the date on which entitlement arose to the new
benefit (see regulation 8(14) of the 2001 Regulations), that is from 3 October
2012; and
(b)
Regulation 67(1)
of the Council Tax Benefit Regulations 2006 provided that, with certain
irrelevant exceptions, “a change of circumstances which affects entitlement to,
or the amount of, council tax benefit (“change of circumstances”), shall take
effect from the first day of benefit week following the date on which the change
actually occurs, and where that change is cessation of entitlement to any
benefit under the benefits Acts, the date on which the change actually occurs
shall be the day immediately following the last day of entitlement to that
benefit.”
- In allowing
the claimant’s appeal, the tribunal relied on regulation 8(2)(c) of the
2001 Regulations which provides that where the superseding decision is
made on the ground of a change of circumstances, it takes effect on the
date on which the change of circumstances is to take effect in accordance
with regulation 67 of the Council Tax Benefit Regulations. Regulation
8(14) provided that the supersession arising from the change of
circumstances of a new award of benefit was to take effect from the date
of entitlement to that benefit. The claimant was not to be regarded as in
receipt of payments which he had never received as entitlement to benefit
fell to be superseded from the date of termination of the existing award
and the start of the new award.
- In my
judgment, this is not a case in which regulation 67(1) has any application
as the change of benefit from jobseeker’s allowance to ESA was not, by
itself, something which affected entitlement to, or the amount of council
tax benefit. It was not, therefore, a change of circumstances as defined
in regulation 67(1). The thing which the council has suggested affected
entitlement to council tax benefit or the amount of it was not the change
of benefit but its own Kafkaesque decision to supersede the award when the
claimant’s income was unchanged and his entitlement to benefit based on
that income was unchanged. The superseding decision awarding the same
benefit as before therefore took effect from 3 October 2012 under
regulation 8(14) of the 2001 Regulations, and not from the first day of
the following benefit week.
- It is
unnecessary for me to express any view as to the apparent conflict in some
circumstances between regulation 8(2) and regulation 8(14) beyond stating
that whatever date is the appropriate date when there is such a conflict,
it appears to me that the result must be that it only income which the
claimant has actually received that is to be taken into account and that
no fictional income is to be treated as added by virtue of the
regulations.
(signed) Michael Mark
Judge
of the Upper Tribunal
10
June 2014
