JO'D -v- Department for Social Development (HB) [2014] NICom 17 (15 April 2014)

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Northern Ireland - Social Security and Child Support Commissioners' Decisions

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Cite as: [2014] NICom 17

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JO'D-v-Department for Social Development (HB) [2014] NICom 17

Decision No: C3/12-13(HB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

HOUSING BENEFIT

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 20 June 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the appeal tribunal dated 20 June 2011 is in error of law. The error of law is that the appeal tribunal (i) having found that an overpayment of housing benefit (HB) for a particular period arose from an official error for the purposes of regulation 97(2) of the Housing Benefit Regulations (Northern Ireland) 2006 ('the 2006 Regulations) failed also to consider, under the same provision, whether the appellant 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 and (ii) having found, implicitly, for the purposes of regulation 97(3) of the 2006 Regulations, that the official error was a mistake on the part of an officer of the Northern Ireland Housing Executive ('the NIHE'), whether the appellant did or did not cause or materially contribute to that mistake.

Accordingly the appeal to the Social Security Commissioner succeeds.

Pursuant to the powers conferred on me by section 59 and paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I set aside the decision appealed against. Pursuant to the powers conferred on me by section 59 and paragraph 8(5)(a) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I am able to give the decision which I consider the appeal tribunal should have given.

My revised decision is as follows:

An overpayment of HB for the period from 20 September 2004 to 1 January 2005 and for the period from 15 December 2005 to 8 January 2006 has occurred which is not recoverable from the appellant.

An overpayment of HB for the period from 2 January 2005 to 14 December 2005 has occurred which is recoverable from the appellant.

The revised amount of HB determined to be recoverable is to be re-calculated by the NIHE.

Background

On 13 March 2006 a decision-maker in NIHE decided that an overpayment of HB had occurred for the period from 20 September 2004 to 8 January 2006 amounting to £4,759.06 which was recoverable from the appellant. On 23 March 2006 a letter of appeal against the decision dated 13 March 2006 was received in NIHE. On 3 April 2006 a letter of reconsideration was issued to the appellant. It would appear that a further reconsideration decision was made on 15 August 2006.

The appeal was first listed for oral hearing on 27 May 2008. The appeal was adjourned and the legally qualified panel member (LQPM) issued directions with respect to decision-making and appeal rights.

On 17 October 2008 correspondence was received in the Appeals Service (TAS) from Mr Hatton from the Law Centre (Northern Ireland). Mr Hatton challenged the validity of the decision-making process and the record of the decision-making process in the appeal submission prepared for the oral hearing of the appeal.

In the file of papers which is before me is a copy of correspondence dated 5 November 2010 from Mr Hatton to the Clerk to the Appeal Tribunal. It would appear that Mr Hatton was sent correspondence by the clerk which may have been in response to a further direction by the LQPM and the receipt of a further submission from NIHE. Those latter documents are not in the file of papers.

The appeal was re-listed for oral hearing on 22 March 2011. The appeal was adjourned with a direction by the LQPM that the appeal should be listed together with other appeals relating to the applicant's entitlement to income support (IS).

There is in the file of papers which is before me a set of documents which is headed 'Addendum to the Decision Maker's Submission of 27.09.06'. The Addendum is dated 16 June 2011. The documents include, at Tab C, a further decision dated 15 June 2011 which purports to be a revision of the decision dated 13 March 2006.

The substantive appeal tribunal hearing took place on 20 June 2011. The appeal was heard together with two other appeals relating to HB and IS. The appellant was present and was represented by Mr Hatton. There was a presenting officer from NIHE present. The appeal tribunal disallowed the appeal and issued the following decision notice:

'Appeal allowed in respect of overpayment decision – an overpayment of Housing Benefit has been made to (the appellant) from and including 20.9.04 to 8.1.06 amount [sic] to £4759.06. The overpayment is not recoverable from him and arose in consequence of an official error.'

There is a hand-written note in the file of papers which is date-stamped as having been received in TAS on 19 August 2011. The note appears to be from the LQPM who heard and determined the appeal on 20 June 2011. It indicates that she proposes that the decisions in connection with certain 'Housing Benefit' decisions should be set aside as she considers that they are potentially erroneous. She requests that action to that effect be commenced.

There is also within the file of papers which is before me correspondence dated 1 September 2011 from Mr Hatton to the 'Clerk to the Appeals Tribunal'. In that correspondence, Mr Hatton refers to correspondence dated 22 August 2011 and received by him. That latter correspondence related to the proposal by the LQPM to set aside the 'Housing Benefit' decision. In summary, Mr Hatton submits that the LQPM had no power to set aside the decision of the appeal tribunal of her own volition.

On 1 March 2012 an application for leave to appeal was received in TAS from the NIHE. On 14 March 2012 the application for leave to appeal was refused by the LQPM. In refusing leave to appeal, the LQPM added the following annotations to the refusal notice:

'1. In relation to the entitlement appeal, the Executive has apparently not yet been provided with a copy of the full Income Support Statement of Reasons which is referred to in the Housing Benefit Statement of Reasons. This should be done forthwith.

2. In relation to the overpayment appeal I am not satisfied the decision has been shown to be potentially erroneous in law.'

Proceedings before the Social Security Commissioner

On 18 April 2012 a further application for leave to appeal was received in the Office of the Social Security Commissioners (OSSC) from Miss Quinn of Decision Making Services (DMS). The application for leave to appeal was shared with the appellant and Mr Hatton on 16 July 2012.

On 22 August 2012 written observations on the application were sought from Mr Hatton and such written observations were received on 2 October 2012. In these written observations, Mr Hatton submitted that:

'At paragraphs 12 and 13 of the application, the Department has stated that the tribunal were dealing with two decisions. The first of these was the entitlement decision of 2 March 2006 as revised on 2 June 2008. The revised 2 June 2008 decision was sent to (the claimant) and an appeal against it was made. Our understanding would be that this decision was not subsequently revised at any later date.

The second decision was the overpayment decision which the Department has stated was made on 13 March 2006. However, it is our view that the Department purported to revise this decision by a further decision made on 15 June 2011 (Tab 33) of the new revised schedule. That decision was also sent to (the claimant) and a copy of the decision notice is at Tab 35.

This decision revised the previous overpayment decision on the grounds that that decision was "defective". The decision notice advises (the claimant) that he could appeal the decision if he thinks it is wrong but then also advises him that as he has already made an appeal he did not have to make a further appeal against this decision. This would appear to be in reference to the former appeal not lapsing as the revised decision was not more favourable to him. As it was unclear from the letter and the decision notice was only issued on 15 June 2011, a letter of appeal against the decision was handed in at the hearing of the appeal on 20 June 2011 with the agreement of the parties and the tribunal. It was agreed that the tribunal could therefore deal with the appeal before it.

As a result, it would be our submission that the two decisions that the tribunal were considering was the entitlement decision of 2 June 2008 and the overpayment decision dated 15 June 2011. It is noted that the tribunal has stated that it was dealing with two decisions both made on 15 June 2011. It is not our understanding that the decision of 15 June 2011 intended to revise the entitlement decision of 2 June 2008 and it would appear the tribunal may have identified the wrong date of the entitlement decision. The tribunal continued to deal with the two separate decisions correctly and it may be that this mistake from the tribunal was not an error of law or if it was, it was not an error which would vitiate the decision.'

The initial written observations were shared with Miss Murray on 2 October 2012. On 31 October 2012 written observations in reply were received from Miss Murray from DMS. In her written observations in reply to those of Mr Hatton, Miss Murray submitted the following in connection with the relevant decision under appeal to the appeal tribunal:

'Firstly I accept Mr Hatton's view that the overpayment decision made on 13 March 2006 was revised on 15 June 2011 so that the decisions that the tribunal were considering were:

1. the entitlement decision dated 2 March 2006 as revised on 2 June 2008; and

2. the overpayment decision dated 13 March 2006 as revised on 15 June 2011.

I also agree with Mr Hatton that the tribunal identified the incorrect date for the entitlement decision. My opinion is that this would not constitute an error in law and again I agree with Mr Hatton that even if it was an error it would not vitiate the decision.'

Written observations in reply were shared with the appellant and Mr Hatton on 5 November 2012. On 5 December 2012 and following a request for and grant of an extension of time, a further submission was received from Mr Hatton which was shared with Miss Murray on 10 December 2012.

On 1 March 2013 I granted leave to appeal. In granting leave to appeal, I identified, as a reason, that '… an arguable issue arises as to whether the decision of the appeal tribunal that an overpayment of housing benefit is not recoverable as the overpayment arose from an official error is correct in law.' I also directed an oral hearing of the appeal. The oral hearing took place on 11 April 2013. At the oral hearing, the appellant was present and was represented by Mr Hatton and the Department was represented by Miss Murray. Gratitude is extended to both representatives for their case summaries and for their detailed and constructive oral observations, comments and suggestions.

At the oral hearing of the appeal, Mr Hatton agreed to provide a further written submission on an issue which had arisen. The further written submission, for which I am grateful, was received on 6 June 2013 and shared with Miss Murray on 8 July 2013. Miss Murray confirmed on 11 July 2013 that she had no further submission to make.

The statement of reasons for the appeal tribunal's decision

The appeal tribunal recorded the following statement of reasons for its decision:

'The history of the case is as set out in the submissions. (The claimant) appeals to the Tribunal against two Housing Benefit decisions, both made on 15.06.2011, the first of which effectively revised and extinguished his entitlement to Housing Benefit from 20.09.2004 on the basis that he had notional capital of £54,000 and the second of which raised an overpayment of £4,759.06 Housing Benefit paid to (the claimant) from and including 20.09.2004 to 08.01.2006 and which was claimed to be recoverable from him.

This case was heard, with the consent of the parties, in conjunction with a linked Income Support appeal and all documentation shared on a consensual basis. The facts and issues relating to that Income Support appeal are equally applicable to the Housing Benefit appeals and I therefore append the Reasons for Decision issued in that matter, to this statement and make reference to them as appropriate.

With regard to the decision to revise and remove entitlement to Housing Benefit with effect from 20.09.2004, the reasons which I gave in the Income Support decision, for disbelieving (the claimant's) account, have equal applicability here. While the benefit in question in this appeal is Housing Benefit rather than Income Support, I find from the evidence before me today that (the claimant), as a past recipient of Housing Benefit, would have been aware of the capital rules applicable to Housing Benefit claimants. Likewise, the application of the "logical impossibility" argument follows the same course in relation to the Housing Benefit, as the Income Support appeal and does not (as detailed in the Income Support reasons) operate to prevent the value of the property being taken into account from 20.09.2004.

With regard to the overpayment decision, however, I am not satisfied that this is recoverable from (the claimant) because the evidence before me indicates that Housing Benefit were, from the outset, aware that (the claimant) had been the owner of his previous house (disclosed in claim form 10.09.2004 "past address … owner") and hence had information which at the very least should have prompted an enquiry as to the circumstances surrounding the disposal of the property. I am advised today that a standard enquiry was made to check on Income Support status but this enquiry did not disclose or seek information with regard to (the claimant's) ownership of his previous house. In my opinion these circumstances amount to an official error under Regulation 97(2) Housing Benefit Regulations (NI) 2006 and as such the overpayment is not recoverable.'

It is important to note that the statement of reasons for the appeal tribunal's decision makes reference to the reasons in the other HB and IS appeals. In the original application for leave to appeal which was before the LQPM, one of the grounds on which leave to appeal was sought was that the Department had not been provided with a copy of the statement of reasons for the appeal tribunal's decision in respect of the IS appeal. Further it was submitted that as the NIHE was not a party to the proceedings in the IS appeal it could not make a request for the relevant statement of reasons. Accordingly it was submitted that the statement of reasons which had been provided was inadequate to explain its decision in the HB entitlement appeal.

When the subsequent application for leave to appeal was received in the OSSC, Miss Quinn, on behalf of the NIHE, indicated that a copy of the statement of reasons for IS appeal had been received. Further she submitted that having received that statement of reasons it was clear that the appeal tribunal had addressed and set out its reasons for its decision in respect of the HB entitlement appeal and she accepted that it could no longer be submitted that the reasons for the decision in the HB entitlement appeal were inadequate. At the oral hearing of the appeal I was provided with a copy of the statement of reasons for the IS appeal.

General legislative background

The scheme for HB was originally provided for in the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, the Social Security Administration (Northern Ireland) Act 1992, as amended, the Housing Benefit (General) Regulations (Northern Ireland) 1987 and the Housing Benefit (State Pension Credit) Regulations (Northern Ireland) 2003. The 1987 and 2003 were the subject of such significant amendments that in 2006 a consolidation exercise took place resulting in the passing of the Housing Benefit Regulations (Northern Ireland) 2006 and the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006. A parallel scheme for HB is in place in Great Britain and a similar consolidation exercise took place in that jurisdiction in 2006.

Specific legislative provisions - entitlement

Section 129 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 ('the 1992 Act') provides that:

129(1) A person is entitled to housing benefit if—

(a) he is liable to make payments in respect of a dwelling in Northern Ireland which he occupies as his home;

(b) there is an appropriate maximum housing benefit in his case; and

(i) he has no income or his income does not exceed the applicable amount; or

(ii) his income exceeds that amount, but only by so much that there is an amount remaining if the deduction for which subsection (3)(b) below provides is made.

(2) In subsection (1) above "payments in respect of a dwelling" means such payments as may be prescribed, but the power to prescribe payments does not include power to prescribe mortgage payments. This subsection is subject to subsection (2A).

(2A) Except to the extent that regulations otherwise provide, payments in respect of services which provide support, assistance, advice or counselling to individuals with particular needs are not "payments in respect of a dwelling" for the purposes of subsection (1).

(3) Where a person is entitled to housing benefit, then—

(a) if he has no income or his income does not exceed the applicable amount, the amount of the housing benefit shall be the amount which is the appropriate maximum housing benefit in his case; and

(b) if his income exceeds the applicable amount, the amount of the housing benefit shall be what remains after the deduction from the appropriate maximum housing benefit of prescribed percentages of the excess of his income over the applicable amount.

Section 130(1) of the 1992 Act provides that:

'No person shall be entitled to an income-related benefit if his capital or a prescribed part of it exceeds the prescribed amount.'

Sections 132(3) and (4) of the 1992 act provide that:

'(3) Income and capital shall be calculated or estimated in such manner as may be prescribed.

(4) Circumstances may be prescribed in which—

(a) a person is treated as possessing capital or income which he does not possess;

(b) capital or income which a person does possess is to be disregarded;

(c) income is to be treated as capital;

(d) capital is to be treated as income.'

Regulation 40 of the Housing Benefit Regulations (Northern Ireland) 2006 ('the 2006 Regulations'), as it was in force as of the date of the decision under appeal, provides that:

'For the purposes of section 130(1) of the Act as it applies to housing benefit (no entitlement to benefit if capital exceeds prescribed amount), the prescribed amount is £16,000.'

Regulation 41(1) and (2) of the 2006 Regulations provide that:

'(1) For the purposes of Part VII of the Act (income-related benefits) as it applies to housing benefit, the capital of a claimant to be taken into account shall, subject to paragraph (2), be the whole of his capital calculated in accordance with this Part and any income treated as capital under regulation 43.

(2) There shall be disregarded from the calculation of a claimant's capital under paragraph (1), any capital, where applicable specified in Schedule 7.'

Paragraph 5 of Schedule 7 to the 2006 Regulations provides that:

'Where a claimant is on income support, an income-based jobseeker's allowance or an income-related employment and support allowance, the whole of his capital.'

In regulation 2(1) of the 2006 Regulations 'person on income support' is defined as 'a person in receipt of income support'.

Specific legislative provisions - overpayments

Section 73(1) to (4) of the Social Security Administration (Northern Ireland) Act 1992 provides that:

'73(1) Except where regulations otherwise provide, any amount of housing benefit determined in accordance with regulations to have been paid in excess of entitlement may be recovered by the Department, the Department of the Environment or by the Housing Executive.

(2) Regulations may require the Department of the Environment or the Housing Executive to recover such an amount in such circumstances as may be prescribed.

(3) An amount recoverable under this section shall be recoverable—

(a) except in such circumstances as may be prescribed, from the person to whom it was paid; and

(b) where regulations so provide, from such other person (as well as, or instead of, the person to whom it was paid) as may be prescribed.

(4) Any amount recoverable under this section may, without prejudice to any other method of recovery, be recovered by deduction from prescribed benefits.'

Regulation 97 of the 2006 Regulations, as it was in force as of the date of the decision under appeal, provides that:

'Recoverable overpayments

97.—(1) Any overpayment, except one to which paragraph (2) applies, shall be recoverable.

(2) 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.

(3) In paragraph (2), "overpayment which arose in consequence of an official error" means an overpayment caused by a mistake made whether in the form of an act or omission by—

(a) the relevant authority;

(b) an officer or person acting for that authority;

(i) the Department;

(ii) the Department for Employment and Learning;

(iii) Revenue and Customs,

acting as such; or

(d) a person providing services to either Department mentioned in sub-paragraph (c) or to the Commissioners for Her Majesty's Revenue and Customs,

where the claimant, a person acting on his behalf or any other person to whom the payment is made, did not cause or materially contribute to that mistake, act or omission.

(4) Where in consequence of an official error, a person has been awarded rent rebate or rate rebate or both to which he was not entitled or which exceeded the benefit to which he was entitled, upon the award being revised or superseded any overpayment of benefit, which remains credited to him by the relevant authority in respect of a period after the date on which the revision or supersession took place, shall be recoverable.'

Regulation 98 of the 2006 Regulations, as it was in force as of the date of the decision under appeal, provides that:

'Person from whom recovery may be sought

98.—(1) For the purposes of section 73(3)(a) of the Administration Act(1) (prescribed circumstances in which an amount recoverable shall not be recovered from the person to whom it was paid), the prescribed circumstance is—

(a) housing benefit has been paid to a landlord in accordance with regulation 92 or 93;

(b) the landlord has notified the Executive or the Department in writing that he suspects that there has been an overpayment;

(c) the Executive is satisfied that the overpayment did not occur as a result of any change of dwelling occupied by the claimant as his home;

(d) it appears to the Executive that, on the assumption that there has been an overpayment—

(i) there are grounds for instituting proceedings against any person for an offence under section 105A(2) or 106(1)(3) of the Administration Act (dishonest or false representations for obtaining benefit), or

(ii) there has been a deliberate failure to report a relevant change of circumstances contrary to the requirement of regulation 84 and the overpayment occurred as a result of that deliberate failure; and

(e) the Executive is satisfied that the landlord—

(i) has not colluded with the claimant so as to cause the overpayment;

(ii) has not acted, or neglected to act, in such a way so as to contribute to the period, or the amount, of the overpayment.

(2) For the purposes of section 73(3)(b) of the Administration Act (recovery from such other person, as well as or instead of the person to whom the overpayment was made), where recovery of an overpayment is sought by the Executive—

(a) the prescribed person from whom it is sought shall be—

(i) in a case where an overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact (in either case, whether fraudulently or otherwise) by or on behalf of the claimant or any other person to whom housing benefit has been paid, the person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made;

(ii) in a case where an overpayment 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 has been made could reasonably have been expected, at the time of receipt of the payment or of any notice relating to that payment, to realise that it was an overpayment, that person instead of, if different, the person to whom the payment was made; or

(b) where sub-paragraph (a)(i) and (ii) do not apply, the prescribed person from whom it is sought is—

(i) the claimant;

(ii) in a case where a recoverable overpayment is made to a claimant who has one or more partners, the claimant's partner or any of his partners. .

(3) For the purposes of paragraph (1), "landlord" shall have the same meaning as it has for the purposes of regulation 92.

(4) For the purposes of paragraph (2)(a)(ii), "overpayment arose in consequence of an official error" shall have the same meaning as in regulation 97(3).

(5) For the purposes of paragraph (2)(b)(ii), recovery of the overpayment may be by deduction from any housing benefit payable to a partner provided that the claimant and that partner were members of the same household both at the time of the overpayment and when the deduction is made.'

The submissions of the parties

Miss Murray for the Department on behalf of the NIHE and Mr Hatton on behalf of the appellant provided detailed and comprehensive written submissions which were supplemented by oral arguments at the hearing of the appeal. I have set out a summary of those submissions and arguments as an Appendix to this decision.

Errors of law

A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

"(i) making perverse or irrational findings on a matter or matters that were material to the outcome ('material matters');

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no difference to the outcome do not matter."

Analysis

I begin by considering the decision of the High Court of England and Wales in R v Housing Benefits Review Board of Penwith District Council, ex p. Menear ([1991] 24 HLR 115, QBD.) In that case, the factual background was that the applicant was a 68 year old woman in poor health living alone. In April 1989, her 79 year old neighbour, Mr W, moved into her house to care for her. In 1989, the applicant applied to the Department of Social Security for IS. Initially the application was refused on the ground that she and Mr W were cohabiting. In December 1989, that decision was reversed on the basis that the applicant and Mr W were living together for mutual support and were not cohabiting.

Before the reversal of the decision on entitlement to IS, the applicant applied to the local authority for HB. On December 15 1989, the local authority wrote requesting details of Mr W's income and capital. On January 11 1990, representatives of the local authority visited and inspected the applicant's home. As a result, the local authority decided that the applicant and Mr W were an unmarried couple within the meaning of section 20(11) of the Social Security Act 1986 ('the 1986 Act') and, consequently, that the applicant had no separate entitlement to HB.

The applicant appealed the decision to the respondents. On March 19 1990, the respondents dismissed the appeal. The applicant sought judicial review of the decision on the basis that since the applicant was on income support she satisfied the requirements of section 20(7)(c)(i) of the 1986 Act and was, accordingly, entitled to HB.

Section 20(7) of the 1986 Act provided that:

'A person is entitled to housing benefit if -

(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home;

(b) there is an appropriate maximum housing benefit in his case; and

(c) either-

(i) he has no income or his income does not exceed the applicable amount; ...'

On behalf of the applicant it was submitted that she satisfied the conditions set out in section 20(7)(a). Further, as a result of the decision of the Secretary of State in connection with IS, she satisfied the condition in section 20(7)(c)(i). Section 21(4) of the 1986 Act provided that:

'Where a person is entitled to housing benefit by virtue of section 20(7)(c)(i) above, the amount shall be the amount which is the appropriate maximum housing benefit in his case.'

Accordingly, she also satisfied the condition in section 20(7)(b).

On behalf of the respondent it was argued that entitlement to HB was not governed entirely by section 20(7). That subsection set out the conditions of entitlement in broad terms but, it was submitted, one had also to look at the more detailed conditions of entitlement in the Housing Benefit (General) Regulations 1987 ('the 1987 Regulations'). It was submitted that when the application for HB – in the form of a rates rebate – was made, the local authority had to determine whether Mr W was, for the purposes of section 22(5) of the 1986 Act, a member of the applicant's family and, if so, the effect of Mr W's income and capital on her claim.

Section 22(5) of the 1986 Act read as follows:

'Where a person claiming an income-related benefit is a member of a family, the income and capital of any member of that family shall, except in prescribed circumstances, be treated as the income and capital of that person.'

…

In section 20(11) 'family' was defined as follows:

'Family' means-

(a) a married or unmarried couple; .....

'unmarried couple' means a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances.'

Regulation 19 of the 1987 Regulations read as follows:

'The income and capital of a claimant's partner ..... which by virtue of section 22(5) of the Act is to be treated as income and capital of the claimant, shall be calculated or estimated in accordance with the following provisions of this part in like manner as for the claimant; and any reference to the 'claimant' shall, except where the context otherwise requires, be construed for the purposes of this Part as if it were a reference to his partner ..... '

Regulation 76 (1) read:

'Unless provided otherwise by these regulations, any matter required to be determined under these regulations shall be determined in the first instance by the appropriate authority.'

Paragraph 5 of Schedule 5 to the 1987 Regulations, dealing with capital to be disregarded, read:

'Where a claimant is on income support, the whole of his capital.'

Based on these relevant legislative provisions, the further argument on behalf of the applicant was summarised by Kennedy J as follows:

'1. When (the applicant) applied for housing benefit she was on income support.

2. Her capital therefore had to be disregarded. (See Housing Benefit Regulations, Schedule 2, paragraph 5.)

3. Even assuming Mr W was correctly regarded as a member of her family his income and capital was to be treated as hers. (See section 22(5).) Therefore his income and capital also fell to be disregarded. The alternative would be to have regard only to his income and capital when by virtue of the regulations hers has to be disregarded. That, submits Mr Drabble, would be illogical.

4. The applicant satisfies the requirements of section 7(a) and section 7(b) and as she is on income support she must also satisfy the requirements of section 7(c)(i).

5. Therefore she is entitled to housing benefit at the maximum rate. (See section 21(4).'

The judge noted the further submissions from counsel for the applicant that if his primary argument was correct then:

'… there will be occasions when a local authority responsible for the administration of housing benefit will be fettered by a decision of the Department of Social Security in relation to income support but he submits that this is not surprising for a number of reasons.

1. Because in relation to income support there is a sophisticated adjudication system with guidance available from a chief adjudication officer and a statutory right of appeal to the Court of Appeal.

2. Because housing benefit is heavily subsidised by the Department of Social Security.

3. Because under regulation 9(1) of the Housing Benefit Regulation 1985, which were the preceding regulations to those of 1987, where the Secretary of State certified a claimant to be entitled to supplementary benefit, that claimant had to be treated as eligible to receive housing benefit. So what is now being submitted is in accordance with the pattern as it existed before the 1987 regulation came into effect.'

The judge thought that what could be added to that rationale was that:

'… if as Miss McAllister submits, there is no interlinking between the decisions in relation to income support and those in relation to housing benefit there may be, as she concedes, curious results, and to some extent interlinking is to be expected because these are two types of income related benefits which come into existence under the same statute. Admittedly one is concerned primarily with income and the other with housing, but that income is relevant to any enquiry as to the need for support in relation to housing is spelt out in section 20(7)(c).'

For those reasons, the judge thought that the interpretation of the relevant legislative provisions advanced on behalf of the applicant was correct. The Housing Benefit Review Board had considered a question which it was not obliged to consider and, accordingly, its decision had to be quashed.

I turn now to the decision of the Commissioner in Great Britain in R(H) 1/04. At paragraph 2 of his decision, the Commissioner summarised the issues arising in the appeal, as follows:

'Stating the matter very broadly for the moment, the position in this case is that the claimant was wrongly awarded income support because he did not disclose to the Benefits Agency occupational pensions to which he and his wife were entitled. The council tax benefit legislation requires income (other than earnings) of a person who is in receipt of income support to be disregarded in determining entitlement to council tax benefit. The claimant was therefore awarded council tax benefit, even though he did disclose the occupational pensions on his original council tax benefit claim form. When the Benefits Agency became aware of the occupational pensions his entitlement to income support was removed from the date of the original award, and a similar decision was then made in relation to council tax. The issue in the case is whether the council tax benefit is repayable, and more particularly whether the Council's failure to make any inquiries of the Benefits Agency as to the correctness of the claimant's income support award constituted an "official error", and if so whether that error caused the overpayment.'

Having considered the provisions of regulation 24(2) and paragraph 4 of Schedule 4 to the Council Tax Benefit (General) Regulations 1992, which are worded in parallel to the legislative provisions being considered in the instant case, the Commissioner had the following to say, on the issue of 'official error' at paragraphs 19 to 22 of his decision:

'19. First, it is contended that the tribunal was wrong to hold that there was any "mistake" by the Council. The effect of paragraph 4 of Schedule 4 to the 1992 Regulations was that the Council, having been informed by the Benefits Agency that the claimant was in receipt of income support, was bound to disregard the entirety of the claimant's income other than earnings, which on the face of it rendered it irrelevant to examine the amount of such income. That is, however, subject to at least two possible qualifications.

20. First, if the income support award has been obtained by fraud, the Council can go behind it, as "in receipt of income support" has been held to mean "lawfully in receipt of income support": R v. South Ribble BC ex parte Hamilton (2000) 33 HLR 104. However, the claimant does not of course contend that the income support award was obtained by fraud.

21. Secondly, the Council could of course have asked the Benefits Agency to check, in the light of the information on the 1994 council tax claim form about the occupational pensions, that the claimant was indeed entitled to income support. Had that been done, the claimant's income support award would no doubt have been reviewed fairly swiftly. Even if the Council had, under the legislation applicable in 1994, felt compelled to award and pay council tax benefit pending the income support investigations, it is unlikely that payment would have needed to continue for more than a short time. (There was a provision in regulation 80(2A) of the 1992 Regulations, which was introduced by amendment as from 1 April 1995 and revoked as from 2 July 2001, which would seem specifically to have authorised withholding of payment of council tax benefit in such circumstances.)

22. The tribunal's reasoning included the statement that "there was clearly no entitlement to benefit [i.e. income support] based on disclosed income". However, it seems to me that, if the claimant had had significant mortgage interest payments qualifying as "housing costs" under Schedule 3 to the Income Support (General) Regulations 1987, he could on the information known to the Council have been entitled to income support notwithstanding the amount of his and his wife's income. The Council nevertheless accepts, in its grounds for this appeal, that "in an ideal world the level of income shown on the 1994 application form is sufficiently high that a check with the Department regarding their income support award would have been prudent." Even if that is so, however, the Council is in my judgment correct in submitting that the fact that it did not do so was not a "mistake". Under the statutory provisions the claimant, being in receipt of income support, was entitled to council tax benefit, and the information before the Council did not demonstrate that the income support award had been wrongly made. Although the Council could for its own protection have queried the correctness of the income support award with the Benefits Agency, the fact that it did not do so did not in my judgment amount to a "mistake". The tribunal erred in law in holding that it did.'

I will return to the comments made by the Commissioner on the question of causation below. In the meantime, I turn to another decision of a Commissioner in Great Britain, in R(H) 9/04. In this case, the Deputy Commissioner considered, in some detail, the effect of the decision in ex parte Menear. It had been argued on the part of the local authority that the effect of that decision was that:

'… that local authorities were bound by decisions of the DWP on issues of fact that were common to a JSA (or other benefit) determination and to a housing benefit determination, but she bolstered this submission by further submissions based on the undesirability (a) of two decision-makers reaching inconsistent decisions on the same question and (b) of an appeal tribunal, on appeal from one decision-maker's decision, reaching a decision that undermined the decision taken by the other decision-maker, particularly where that other decision-maker had not been heard by the tribunal.

Miss Webb's main submission was that where any issue of fact was common to both the JSA legislation and the housing benefit legislation, and that issue had already been decided by the DWP, the housing benefit decision-maker was bound by the DWP decision in accordance with the decision in ex parte Menear. She accepted that, on its facts, the Menear case had concerned a decision about a claimant's income and capital, but there was no reason why the decision should not apply to any other decision on any issue common to both benefits. If not, then local authorities would have to make independent checks of housing benefit claimants' identity, address and other relevant household details and might reach decisions inconsistent with those of the DWP.'

On behalf of the claimant, it was argued that '…the effect of ex parte Menear was only that a housing benefit decision-maker was bound by a DWP decision on income and capital issues.'

After having considered the reasoning of Kennedy J in some detail, the Deputy Commissioner concluded that:

'35. This passage does not in my judgment support the wider principle contended for by Miss Webb. Kennedy J observed merely that "some", not complete, "interlinking" was to be expected; moreover, the dispute before him related purely to financial issues. If Kennedy J had been recognising the existence of some wider principle akin to res judicata, he would have explained the legal basis for it. In my view there is no legal basis for such a wider principle.

36. I therefore conclude that Mr Edwards was right to submit that the binding effect of DWP decisions established in ex parte Menear relates only to issues relating to income and capital. More precisely, I consider that the binding effect of the DWP decision consists in requiring the local authority to treat a person on income support or income-based JSA as having no income or capital and therefore automatically entitled, from the financial point of view, to housing benefit.'

Both decisions in ex parte Menear and R(H) 9/04 were considered by Upper Tribunal Judge Wright in AM v Chelmsford Borough Council (HB) ([2013] UKUT 245, CH/3343/2012, 'AM'). In AM the Upper Tribunal judge noted, in general terms, at paragraphs 16 to 17:

'16. Both the Council and the tribunal were in error in considering that the ratio of ex parte Menear applied on the facts of this case. Menear is authority for the proposition that where a claimant for housing benefit (or council tax benefit) is on income support all of her (and her partner's (if she has one)) earnings, income and capital are to be disregarded. This now, however, is the statutory consequence of the disregards in paragraph 12 of Schedule 4, paragraph 4 of Schedule 5 and paragraph 5 of Schedule 6 to the Housing Benefit Regulations 2006 (the "HB Regs" – and its state pension credit age counterpart and the equivalent CTB Regulations).

17. There have been a number of decided cases that have addressed in what circumstances a local authority may not be bound by a decision made on behalf of the Secretary of State for Work and Pensions that a person is entitled to (and thus "is on") income support: see, for example R-v- South Ribble District Council HBRB ex parte Hamilton [2000] 33 HLR 102 (CA) (if local authority can show that a person is fraudulently claiming income support then it is not bound by the Secretary of State's decision awarding income support). These cases are all predicated, however, on the starting point that a local authority is bound by law to disregard a claimant's earnings, income and capital if he or she is on income support. But there is nothing in the law (statutory or case-law) that lays down that a local authority is similarly bound to follow the Secretary of State where he has decided that a claimant is not entitled to income support. In other words, and to put this as pithily as possible, Menear does not work the other way around.'

I have noted that the Upper Tribunal Judge also observed, at paragraphs 22 and 23:

'22. Moreover, there is nothing in the HB statutory scheme that dictates that a local authority is bound by the Secretary of State's non-entitlement decision and the reasons for it (or the determinations on fact that led to it). The paragraphs in schedules 4, 5 and 6 to the HB Regs referred to above are the exceptions to this, but they apply only where a person "is on income support", they have no application where a person is not on income support.

23. Indeed it is probably wrong legally to use language such as "dictates" or "bound" even in respect of the situations where a person is on income support. This is because all schedules 4-6 to the HB Regs provide for is that earnings, other income and capital which a claimant has are to be disregarded, but strictly speaking, and as a matter of construction of the statutory scheme, it does not absolve a local authority from identify [sic] whether a person has earnings, other income or capital. The wording of regulations 36(2) and 38(2) of the HB Regs in particular point to the net earnings from employment or net profit from self-employment having to be calculated before the disregards in schedule 4 are to be applied. However, as the effect of the disregards in paragraph 12 of schedule 4 and paragraphs 5 in Schedules 5 and 6 is to disregard all the earnings, other income and capital of the claimant (or his partner if he has one) if he is on income support, administratively at least it probably remains sensible to talk in terms of a local authority being bound in income and capital terms where the claimant is on income support.'

Turning to R(H) 9/04 he summarises certain of the comments by the Deputy Commissioner in that case, as follows:

32. First, he rejects four square an argument (put in paragraph 20 of the decision) that the effect of ex parte Menear is that a local authority is bound by decisions of the Secretary of State for Work and Pensions on any issues of fact that were common to a JSA/IS decision and a housing benefit decision. Second, he rejects an argument made to support the first argument based on the undesirability of different decision makers coming to different conclusions on the same issue …

33. Third, it is plain from the discussion in paragraphs [24]-[28] of R(H) 9/04 that it limits the effect of ex parte Menear to cases where the housing benefit claimant is on income support.

34. Fourth, he holds explicitly that "[i]n the case of a claimant who is not receiving income support or JSA, those provisions [concerning, inter alia, the income and capital of the claimant and his/ her family – see para. [26] of the decision] give rise to matters on which a local authority has to reach a decision" (paragraph [27]).

35. Fifth, he rejects the argument (made similarly here) that when Mr Justice Kennedy in ex parte Menear referred to 'interlinking' he was referring interlinking on any and all issues common to income support and housing benefit (se para. [p35]).

36. Sixth Deputy Commissioner Paines points to the inevitable possibility of different decision makers arriving at different decisions on the same facts absent an express rule tying the housing benefit decision maker to the decision made by the Secretary of State (and, importantly for the argument made by the Council here, the findings of fact or determinations on fact that led to that entitlement decision). As the Deputy Commissioner put it in para. [40] of R(H) 9/04:

"Miss Webb pointed to the undesirability of different decision-makers making different decisions on the same issue. She is right to say that that is not a desirable state of affairs. However, it is an inevitable possibility unless provision is made to make one decision-maker's decision binding on the other decision-maker"

It seems to me that the principles which emerge from this relevant case-law are as follows. It is prudent to have an administrative arrangement whereby decision-makers in different agencies dealing with connected, income-related benefits, such as income support and housing benefit with specific rules which passport entitlement to one benefit grounded on entitlement to the other, should be permitted to rely on information obtained from one agency in making decisions on entitlement to a particular benefit, particularly information in respect of income and capital. The rationale for having such an administrative arrangement was set out very skilfully by Miss Murray in her written observations in reply to those of Mr Hatton and as follows:

'In general, disregarding the income and capital of a person on another income related benefit (commonly known as passporting) eases administration. The information is already held by government officials therefore it avoids duplication of work and also saves claimants from supplying, sometimes complex information several times. If housing benefit officers were obliged to check that income support was properly in payment in every case it would make the "passporting" regulations otiose. I submit therefore that it is neither practical nor necessary for officers to check such cases.'

In CH/2304/2004, the Commissioner in Great Britain had set out the background to this arrangement in relation to housing benefit and income support at paragraph 10 of her decision, as follows:

'10. For the purposes of the claimant's housing benefit claim, under Schedule 3, paragraph 10, Schedule 4, paragraph 4, and Schedule 5, paragraph 5 of the Housing Benefit (General) Regulations 1987, the income and capital of a claimant on income support are simply to be disregarded. This is consistent with the distinction between standard and certificated housing benefit which was a feature of the original housing benefit scheme introduced in 1983: the assessment of income and capital of supplementary benefit (later income support) claimants was the exclusive responsibility of the Department of Health and Social Security, as it then was, and the local authority was required only to assess eligible rent and then to pay it in full against the benefit officer's certificate that the claimant was entitled to supplementary benefit/income support.'

I would regard such an arrangement as being administrative in nature only and for administrative convenience. In R(H) 9/04 the Deputy Commissioner observed, at paragraph 25, that the starting point was that a decision-maker had to decide whether the conditions of entitlement to HB were satisfied. That duty '… includes deciding any issue which goes to the claimant's entitlement, unless some provision of the statutory scheme (or conceivably, some other rule of law) requires the local authority to regard any issue as having been concluded by a decision taken by someone else.' I have also set out the comments made by Upper Tribunal Judge Wright at paragraph 23 of his decision in AM, where he concluded that '… administratively at least it probably remains sensible to talk in terms of a local authority being bound in income and capital terms where the claimant is on income support. Earlier in the same paragraph he had cautioned that it was '… probably wrong legally to use language such as "dictates" or "bound" even in respect of the situations where a person is on income support.' The emphasis in this quotation is my own.

It is equally clear that there are circumstances where a decision-maker in one agency (the NIHE, for example) will not be fettered by the decision made on entitlement to a parallel income-related benefit made by another Agency (the Social Security Agency, for example). In R v South Ribble District Council HBRB, ex parte Hamilton, ([2000] 33 HLR 102 (CA), 'Ribble'), it was accepted, as was set out by the Commissioner in paragraph 20 of his decision in R(H) 1/04 that '…if the income support award has been obtained by fraud, the Council can go behind it, as "in receipt of income support" has been held to mean "lawfully in receipt of income support"…' There is no suggestion, of course, that income support had been obtained by fraud in the instant case.

It seems to me that there is also a general principle that a HB decision-maker will be under a duty to 'look behind' the decision giving entitlement to IS where the decision-maker has evidence which was not before the IS decision-maker and which casts doubt as to whether the conditions of entitlement to IS. The more likely scenario will be that the HB decision-maker has additional information leading to doubts as to whether the conditions of entitlement to HB are satisfied and, because the conditions of entitlement to IS would be comparable, would lead to an uncertainty as to whether the conditions of entitlement to the latter benefit are satisfied.

In R(H) 1/04, the Commissioner noted that in the case which was before him, the local authority had information which did not appear to have been before the decision-maker considering entitlement to IS. The Commissioner observed that the local authority could have requested that the IS decision-maker, in light of the new information, check whether the claimant was, indeed, entitled to IS. If that action had been taken it was likely that there would have been an earlier review of the entitlement to IS. Further, the Commissioner noted that even if the local authority had felt compelled to award and pay benefit pending any investigation into the IS entitlement, there were specific provisions – regulation 80(2A) of the 1992 Regulations – which would have permitted withholding of payment of benefit in such circumstances. On the facts which were before him, the Commissioner held that the failure of the local authority to carry out what would otherwise have been a prudent check on entitlement to IS, did not amount to a 'mistake' for the purposes of the relevant legislative provisions.

In the case which is before me, it is accepted that:

(i) in the claim form to HB which was received in the NIHE the appellant indicated that he had formerly lived in a property which was not the property in respect of which he was making the claim to HB;

(ii) in the claim form to HB, the appellant indicated that in respect of the property in which he formerly lived he was both a 'private owner' and a 'tenant' and that he had last lived in this property on 20 September 2004;

(iii) the NIHE, through correspondence dated 22 September 2004, sought further details concerning the former property and the appellant's intentions in connection with it;

(iv) on 23 September 2004 an enquiry was made of the IS section concerning the appellant's entitlement to IS. The 'screen shot' evidencing the response to the query shows the appellant's address, for IS purposes, as being the address of the former property which he occupied prior to the claim to HB;

(v) the appellant's solicitor, in correspondence dated 13 October 2004, responded to the NIHE with details of the property;

(vi) on 19 October 2004, the appellant was awarded an entitlement to HB from and including 20 September 2004;

(vii) on 25 October 2004 a reference was made by NIHE to the Benefit Investigation Unit.

It seems to me that the decision-maker(s), at the initial decision-making stage of the claim to housing benefit, were very alert to the information which the appellant had proffered concerning his previous address. It seems to me that the decision-maker who completed the correspondence dated 22 September 2004 was alert to the significance of the information concerning the appellant's previous home and was aware that previous ownership of a home could have an impact on entitlement to HB – hence the questions seeking clarification of the status of the property and the applicant's intentions in connection with this. It seems to me that at this stage there was no consideration of an automatic passport entitlement to HB based on the appellant's statement in his claim form that he had an entitlement to IS. Following the receipt of the response from the reply from the appellant's representative it appears that the decision-maker was, initially satisfied with the response, and entitlement to HB was awarded, apparently on the basis of entitlement to IS.

That was not the end of the matter, however. Following the award of an entitlement to housing benefit, the appellant's case was referred to the Benefit Investigation Unit. Attached to the original appeal submission as Tab No 7, are details of the actual referral. Once again, a decision-maker, whether the same or different to the one who had made the original query and/or awarded entitlement to HB, was concerned about the property previously occupied by the appellant. The referral form makes reference to the date and origin of 'suspicion', sets out details of the 'allegation', refers to a 'liability' referral and makes reference to the appellant 'possibly' having owned the previously occupied property and 'possibly' having 'benefit/income/savings or capital which is undeclared or understated.' Those types of queries and questions all go to the conditions of entitlement to HB and it seems to me that decision-maker, based on the information which had been provided by the appellant in the claim form to HB, was concerned as to whether the conditions of entitlement to HB were satisfied. We are aware now, of course, that there was no follow-up to the referral to the Benefit Investigation Unit.

At this stage, I will also set out what is also accepted:

(i) the appellant had been in receipt of IS from 1995;

(ii) an IS A2 review form was issued to the appellant on 8 April 2005;

(iii) the completed form was received in the Department on 11 April 2005 and in the completed form the appellant indicated an address different to that which had originally been held by the IS section of the Department and that he both owned his home and rented from a private landlord;

(iv) a change of address form was, at some stage, issued to the appellant;

(v) the change of address form was returned by the appellant to the Department on 25 July 2005;

(vi) entitlement to IS was suspended from 27 July 2005 and disallowed from 20 September 2004 on 11 November 2005;

(vii) on 1 December 2005 a review form was issued to the appellant by the NIHE;

(viii) the review form was received back in the NIHE on 15 December 2005;

(ix) on 25 January 2006 entitlement to HB was suspended and subsequently disallowed from 20 September 2004 on 2 March 2006.

As was noted above, regulation 97(2) and (3) of the 2006 Regulations provide that:

'(2) 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.

(3) In paragraph (2), "overpayment which arose in consequence of an official error" means an overpayment caused by a mistake made whether in the form of an act or omission by—

(a) the relevant authority;

(b) an officer or person acting for that authority;

(c) an officer of—

(i) the Department;

(ii) the Department for Employment and Learning;

(iii) Revenue and Customs,

acting as such; or

(d) a person providing services to either Department mentioned in sub-paragraph (c) or to the Commissioners for Her Majesty's Revenue and Customs,

where the claimant, a person acting on his behalf or any other person to whom the payment is made, did not cause or materially contribute to that mistake, act or omission.'

I have to consider whether the overpayment which arose in the instant case was one which arose in consequence of an official error. In so doing, I also have to consider whether the overpayment was caused by a mistake made whether in the form of an act or omission by an officer acting for the NIHE and whether the appellant caused or materially contributed to the mistake, act or omission. Further, I have to consider whether the appellant, at the time of receipt of the payment during the period of the overpayment, could not reasonably have been expected to realise that it was an overpayment.

I begin by concluding that for the purposes of the relevant legislative provisions a mistake has been made by the NIHE or, more properly by an officer acting for the NIHE. The mistake lies in the failure or omission by the decision-maker to follow up the referral to the Benefit Investigation Unit. It seems to me, and as was noted in more detail above, that the decision-maker had sufficient information to consider whether the award of entitlement to HB was correctly made. The award of entitlement to HB was based on the parallel entitlement to income support. Accordingly, a further investigation as to whether the conditions of entitlement to HB were satisfied would have been likely to have revealed doubt about the validity of the award of entitlement to IS. It was not enough, in my view, given the nature of the information made available to the decision-maker for that decision-maker to rely, without further enquiry, on the parallel information relating to entitlement to IS. In R(H) 1/04, the Commissioner decided, on the facts of the case which were before him, that the failure of the local authority to carry out what would otherwise have been a prudent check on entitlement to IS, did not amount to a 'mistake' for the purposes of the relevant legislative provisions. Each case turns on its individual facts but I am clear that in the instant case that there was sufficient before the decision-maker to place him/her on alert as to whether the conditions of entitlement were satisfied. Certain action was taken, through the correspondence dated 22 September 2004 to the appellant. Following the award of entitlement to HB the decision-maker thought it appropriate to refer the case to the Benefit Investigation Unit. It seems to me that a follow-up of that referral was equally appropriate.

It is equally arguable that the decision-maker could have taken action to consider whether suspension of entitlement to HB was appropriate, Mr Hatton argued that regulation 11 of the Housing Benefit (Decisions and Appeals) Regulations Northern Ireland 2001, as amended ('the 2001 Regulations') gave power to the NIHE to suspend payments where the issue arises as to whether a claimant meets the conditions of entitlement to HB. I accept that argument. It seems to me that suspension action was appropriate and ought to have been considered.

I now have to consider whether the appellant caused or materially contributed to the mistake, act or omission. The starting point for the approach to this question is R(Sier) v Cambridge City Council Housing Benefit Review ([2001] EWCA Civ 1523]'Sier'). The key principle which emerges from this decision and which has been confirmed in a number of decisions of the Social Security Commissioners and Upper Tribunal Judges since is that it is necessary to consider whether the claimant had caused or materially contributed to the overpayment rather than caused or materially contributed to the mistake.

In R(H) 1/04, the Commissioner analysed the effect of Sier at paragraphs 25 and 26 of his decision, as follows:

'25. In R (Sier) v. Cambridge CC HBRB [2001] EWCA Civ 1523 the Court of Appeal rejected a submission on behalf of the claimant that in the corresponding provision (regulation 99(3) of the Housing Benefit (General) Regulations 1987) – which for present purposes is in identical terms – relating to overpayments of housing benefit the overpayment is irrecoverable if the official error is a cause of the overpayment. Latham LJ, having referred to the importance, emphasised by Lord Hoffmann in Environmental Agency v. Empress Car Co Ltd. [1999] 2 AC 22, of having regard to the statutory context when determining questions of causation, said:

"In the present case, one has to have regard to the general legislative purpose, which seems to me to be clear. Parliament has laid down in the Regulations that a person is to be relieved of the obligation to repay an overpayment when that has been occasioned by an administrative mistake and not by any fault on the part of the recipient. That seems to me to be the basic thrust of the Regulation and one should approach the meaning of the word 'cause' and its application to the facts on that basis."

Simon Brown LJ said:

"If one asks the purpose for which the question arises under regulation 99(3) as to whether the overpayment was caused by an uninduced official error, the common-sense answer is so as to distinguish that sort of case from a case where the claimant himself is substantially responsible for the overpayment."

26. In my judgment, therefore, it is clear that an overpayment will not be irrecoverable if it was substantially caused, not by the official error, but by the claimant's own fault…'

I apply those principles to the instant case by considering four different periods. Working 'backwards' in the recovery period, the first period is from 15 December 2005 to 25 January 2006. I have noted the end date of this period as being 25 January 2006 which is the date on which the appellant's entitlement to HB was finally suspended. The recovery period ends on an earlier date which is 8 January 2006.

As was noted above, the appellant, having been requested to do so, returned a HB review form to the NIHE where it was received on 15 December 2005. In this form the appellant indicated that his entitlement to IS had been suspended from September 2005. As has been noted above, the actual suspension date was 27 July 2005 and entitlement was disallowed from 20 September 2004 on 11 November 2005. On 25 January 2006 entitlement to HB was suspended and subsequently disallowed from 20 September 2004 on 2 March 2006.

It is clear, therefore, that information concerning suspension of entitlement to IS was received in the NIHE on 15 December 2005. It seems to me that, prima facie, the overpayment of HB for this period was caused by a mistake made in the form of an omission by an officer acting for the NIHE. The omission is in the failure to act on the evidence concerning the suspension of entitlement to IS for a period of close to 7 weeks.

Miss Murray, after referring to a series of decisions of the Social Security Commissioners on the issue submitted that there was no clear principle as when any delay would constitute an official error. She submitted that the decision of the Commissioner in Great Britain in CH/454/2005 provided useful guidelines when considering delays. In the instant case and given the holiday Christmas period between 15 December 2005 and 26 January 2006 she could not conclude that the delay amounted to an official error. Mr Hatton submitted that it was difficult to accept that the delay in actioning the information received from the appellant on 15 December 2005 until 25 January 2006 was not an official error. He submitted that he had considered the decision of the Commissioner in Great Britain in CH/454/2005 and argued that the Commissioner in that case had referred to '… only protracted delays possibly amounting to official error.' As the change disclosed by the appellant clearly affected entitlement to HB and as was evidenced by the action taken on 25 January 2006, it did not require further detailed investigation but merely a telephone call to the IS office. Accordingly, there was a '… strong indication that the failure to process the change earlier and stop payments more quickly was an official error.'

With respect to the submission made by Miss Murray, I reject it and accept the arguments put forward by Mr Hatton. The information provided by the appellant on the HB had a clear implication for his on-going entitlement to HB. That entitlement was based on his parallel entitlement to IS. When there was evidence that entitlement to IS was suspended, there was a duty on the decision-maker to take action in respect of entitlement to HB. As was noted by Mr Hatton, and as was evidenced by the action taken on 25 January 2006, all that was required to lead to the suspension of HB was the making of a straightforward telephone call to the IS section. With respect to the submissions made by Miss Murray, and even with the intervening holiday period, it did not require close to 7 weeks to take the necessary action. The decision in CH/454/2005 is authority for the principle that a 'particularly protracted' delay in auctioning received evidence relevant to benefit entitlement will amount to an official error. On the facts in CH/454/2002 the Commissioner agreed with the appeal tribunal that the period in issue there was not particularly protracted. Each case turns on its own facts, however, and in the instant case, and given the relative speed with which suspension was achieved when action was finally taken on 25 January 2006, I find the delay was particularly protracted. It is clear, in addition, that the appellant did not cause or materially contribute to the mistake or omission.

I return below to the further question as to whether the appellant, at the time of the receipt of the payment during this period, could not reasonably have been expected to realise that it was an overpayment.

The second period is from 27 July 2005 to 14 December 2005. The significance of the first of those dates is that entitlement to IS was suspended from 27 July 2005. The significance of the second date is that this is the day before the date on which the NIHE learned of the suspension of entitlement to IS from the appellant.

Miss Murray submitted that the appellant had a duty to notify the NIHE when IS ceased and did not do so until the HB review form was sent to him. Miss Murray submitted that the initial claim form to HB stated that the appellant was under a mandatory duty to inform the NIHE of any changes in circumstances and, more specifically, was mandated to inform NIHE 'immediately and in writing' if he stopped or started getting IS.

In the file of papers which is before me is a copy of the claim form to HB which was completed and signed by the appellant on 10 September 2004. At page 21, Part 16 of the relevant form, the appellant is asked to read a declaration and then sign and date the form. Part of the declaration is:

'I know that I must let the Housing Executive know about any changes in my circumstances which might affect my claim.'

Thereafter I cannot find a declaration in the format which Miss Murray set out in her final submission in connection with the appeal. Nonetheless, I am satisfied that the suspension of entitlement to IS was a material change in the appellant's circumstances sufficient to trigger his duty to inform the NIHE of that change. In his submission of 6 June 2013, Mr Hatton conceded that the suspension and termination of entitlement to IS was 'clearly a material change in his circumstances.' The whole basis of the appellant's entitlement to HB was his parallel entitlement to IS. It is evident that had the appellant informed the NIHE about the suspension of entitlement to IS when that suspension was implemented then appropriate decision-making would have been undertaken by the decision- maker in the NIHE.

It seems to me, therefore, that the overpayment for the period from 27 July 2005 to 14 December 2005 was, to use the language of the Commissioner in Great Britain in R(H) 1/04, substantially caused, not by the initial mistake by the decision maker in the NIHE, but by the appellant's failure to inform the NIHE that his entitlement to IS had been terminated.

Once again, I return below to the further question as to whether the appellant, at the time of the receipt of the payment during this period, could not reasonably have been expected to realise that it was an overpayment.

The third period is from 11 April 2005 to 26 July 2005. The significance of the first date is that I am reminded that the appellant returned his A2 review form to the IS section on 11 April 2005 and a 'change of address' form on 25 July 2005. It was clearly on the basis of the information on the 'change of address' form that action was taken to suspend entitlement to IS. On the A2 review form the appellant indicated an address different to that which was held by IS. Further he indicated in directly contradictory answers that he both owned the property which he had previously occupied and that he rented the property from a private landlord. It seems to me that this information was sufficient for the IS section to initiate further enquiries concerning the appellant's 'occupation' of the previous property. It is clear that certain action was taken. A 'change of address' form was sent out and returned by the appellant on 25 July 2005.

I have to consider whether the delay in the IS section in not taking suspension action between 11 April 2005 and 26 July 2005 was the substantial cause of the overpayment for that period. I have concluded that it was not. Applying the principles in CH/454/2002, I do not find that the delay period was particularly protracted. I have noted that the appellant provided contradictory information on the A2 review form. Accordingly the information would not, be sufficient, in itself, for the decision-maker in IS to consider that the conditions of entitlement to IS did not continue to be satisfied. It also seems to me that the process for clarifying the appellant's 'occupation' of the previous property would be likely to take some time and would not be amenable to elucidation simply by the making of a telephone call. Action appears to have been taken through the issue of a 'change of address' form. When that form was returned, suspension action was swift. Once again, I return below to the further question as to whether the appellant, at the time of the receipt of the payment during this period, could not reasonably have been expected to realise that it was an overpayment.

I turn now to the final of the four periods which is from 20 September 2004 to 10 April 2005. The significance of the first of those dates is that it is the date from which the appellant gained an entitlement to HB (although he was not informed of this until 19 October 2004). The significance of the second date is that it is the day immediately before the date on which IS section was informed about the appellant's change of address.

Miss Murray submitted that the appellant had caused or materially contributed to the overpayment during this period (and, indeed, during the entirety of the recovery period) by failing to inform IS that he had changed his address. The argument was that had the appellant informed the IS section of a change of address then suspension action in connection with entitlement to IS would have been taken earlier.

Mr Hatton submitted that what the applicant had failed to disclose to the IS section was his change of address. If the appellant had disclosed his change of address on the date on which that change occurred – 20 September 2004 – as he was required to do so, then the system would still have shown that he had a live claim to IS on 23 September 2004, which was the date on which the enquiry was made to the IS section by the decision-maker in HB. Even with an effective disclosure on 20 September 2004, no decision on the appellant's entitlement to IS based on that disclosure could have been made by 23 September 2004, due to the requirement for further evidence gathering and subsequent decision-making and the system would reflect this. Accordingly, when the enquiry was made by the HB decision- maker to the IS section the system '… in all likelihood still would have shown (the claimant) having a live claim to income support despite that the fact that he would have disclosed the change of circumstances.' In Mr Hatton's view the cause of the overpayment was the mistake by NIHE in not confirming that the appellant was lawfully in receipt of IS and in not following up the information disclosed by him when making his claim to HB and in the subsequent further queries by the decision-maker.

I am of the view that the appellant was under a duty to inform the IS section of the material change in his circumstances that he had changed his address. I am also of the view that Miss Murray is correct to submit that had the appellant disclosed his change of address to IS section then that information would have been acted upon. Indeed, when the appellant did notify the IS section about the change of address, action was, in fact, taken albeit that it took some time for suspension of entitlement to be implemented. I cannot accept, with respect, Mr Hatton's submission that effective disclosure of the change of address on 20 September 2004 would not have made any difference. I agree with him that it would have taken the IS section some time to act on the information which it received. I agree that it is highly unlikely that the information concerning the change of address would have been actioned and uploaded to the IS computer system by 23 September 2004 – the day on which that system was accessed by the decision-maker in the NIHE. It seems to me, however, that an earlier disclosure by the appellant would have been acted upon by IS eventually. The likely outcome would have the earlier suspension of benefit. When that happened, and as was noted above, the appellant's duty to disclose the suspension of entitlement of IS to the NIHE would have been triggered.

I am of the view that had the appellant disclosed the material change in his circumstances – that is that he had changed his address – to the IS section, on 20 September 2004, the date on which the change occurred, then the IS section would have taken action in connection with his entitlement. I am of the view that the likely outcome would have been suspension of entitlement to that benefit. I have concluded, however that it would have taken some time for the suspension action to be implemented. As was noted above it took three and a half months for the IS section to implement suspension when the material change of circumstances was actually disclosed. I have considered that the period was not particularly protracted. Applying that to the present period under consideration, it seems to me that even if the appellant had disclosed his change of address on 20 September 2004 then suspension action would not have taken place until around 1 January 2005. In the meantime, the appellant would have been under no disclosure duty to either the IS or HB sections. I have concluded, therefore, that for the period from 20 September 2004 to 1 January 2005 the overpayment of HB was caused by a mistake in the form of an omission by an officer acting for the NIHE and to which the appellant neither caused nor materially contributed.

I now have to consider whether the appellant, at the time of the receipt of the payment during the relevant periods, could not reasonably have been expected to realise that it was an overpayment. Once again, I begin by working backwards. I have concluded that for the period from 15 December 2005 to 25 January 2006 the overpayment of HB was caused by a mistake in the form of an omission by an officer acting for the NIHE and to which the appellant neither caused nor materially contributed. The question as whether the appellant, during this period could not reasonably have been expected to realize that receipt of payment was an overpayment is easily dealt with. The appellant had done all that was required of him. He would have been justified in concluding that he was entitled to the HB which was paid to him during that period.

Different considerations apply to the period from 27 July 2005 to 14 December 2005. I have concluded that the overpayment for this period substantially caused, not by the initial mistake by the decision-maker in the NIHE, but by the appellant's failure to inform the NIHE that his entitlement to IS had been terminated. I am wholly satisfied that the appellant was aware that his entitlement to HB was resultant on his parallel entitlement to IS. He was informed of that in the notification of entitlement to HB on 18 October 2004. I am equally satisfied, therefore, that on cessation of entitlement to IS and continuing receipt of payments of HB, the appellant could reasonably have been expected to realize that those payments were overpayments. Much was said in argument before me about the appellant's knowledge of the capital rules, including the notional capital rules. I am satisfied, however, that the issue can be dealt with in terms of the appellant's knowledge of the link between entitlement to IS and entitlement to HB.

I deal with the remaining two periods, this time in chronological order. I have concluded that the overpayment for the period 20 September 2004 to 1 January 2005 was caused by a mistake in the form of an omission by an officer acting for the NIHE and to which the appellant neither caused nor materially contributed. This was because I was satisfied that even if the appellant had disclosed the material change of circumstances, namely his change of address, to the IS section, as he was required to do, it would have taken some time for the IS section to act on that information and implement suspension of entitlement. I have concluded that in that period, therefore, the appellant would, again, have been justified in believing that he had done all that was required of him and that any payments of HB were payments to which he was entitled.

For the final period, that is from 2 January 2005 to 16 July 2005 I have concluded that the substantial cause of the overpayment for this period was not by the initial mistake by the decision-maker in the NIHE, but by the appellant's failure to disclose a material change of circumstances to the IS section. As noted above, I have concluded that had he done so then action leading to his suspension of entitlement to IS would likely have been implemented by 1 January 2005. Thereafter, the appellant's duty to notify the NIHE of his non-entitlement to IS would have been triggered. That duty would have continued through the period beginning 11 April 2005 to 16 July 2005. For the reasons which I have given in connection with the period from 27 July 2005 to 14 December 2005, I conclude that the appellant could reasonably have been expected to realise that during the continuing receipt of payments of HB that those payments were overpayments.

Another issue arising

I turn to the submission made by Mr Hatton that, for the purposes of the relevant legislative provisions, the appellant was in receipt of IS during the relevant period as he was in actual receipt of the benefit during that period. Accordingly, if that 'receipt' was lawful he satisfied the conditions of paragraph 5 of Schedule 7 to the 2006 Regulations and his capital had to be disregarded. Even if it was later determined that there was no entitlement to IS for the relevant period that would not alter the fact that he was actually in receipt of IS during that period. Accordingly there could be no overpayment of HB as there was entitlement to it during the relevant period.

With respect to this submission, I cannot accept it. In CH/1820/2006, the facts were that the claimant had been in receipt of IS from the end of 1993. He was subsequently awarded entitlement to HB and council tax benefit resultant on his entitlement to IS. On 22 December 2003 and following detailed enquiries, the Department for Work and Pensions decided that the appellant was not entitled to IS from 27 August 1998. On 28 July 2004 the local authority decided that the claimant did not have an entitlement to HB from 20 January 2004. At paragraph 16, the Commissioner stated:

'I hope I am not doing injustice to the appeal tribunal's reasoning. However, if it was along the lines that mere receipt of income support was sufficient then such reasoning produces the following anomalous situation. A person is awarded income support and, as a consequence of that award, he is also awarded housing benefit and council tax benefit. By "as a consequence" I mean that the award of income support "passports" him to the other two benefits and the relevant authority cannot investigate his financial circumstances. Later, the Department for Work and Pensions decides that that person was not entitled to income support and removes it from the date of entitlement. The decision is either not appealed or any appeal is unsuccessful. Consequently, it becomes final; see section 17 of the Social Security Act 1998. The Department for Work and Pensions can recover the amount of income support that was wrongly paid to him. However, if what I understand to be the appeal tribunal's reasoning is right, none of the housing benefit and council tax benefit that was paid to him on the basis that he was entitled to income support can be recovered. That is not a conclusion with which one would wish to arrive unless it was unavoidable. I do not think that it is. When the Department for Work and Pensions decided that the claimant was not entitled to income support from August 1996, he was no longer "in receipt of income support" from that time. He had been paid income support but the effect of the later decision was that he had been wrongly paid it and was required to repay what he had received. He could no longer be categorised as in receipt of income support from that time. The Council was entitled to make the decision which it made on 28 July 2004, and to recover the overpayments.'

I agree with that reasoning and apply it in the instant case.

Disposal

The decision of the appeal tribunal dated 20 June 2011 is in error of law. Pursuant to the powers conferred on me by Section 59 and Paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I set aside the decision appealed against. Pursuant to the powers conferred on me by Section 59 and Paragraph 8(5)(a) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I am able to give the decision which I consider the appeal tribunal should have given.

My revised decision is as follows:

An overpayment of HB for the period from 20 September 2004 to 1 January 2005 and for the period from 15 December 2005 to 8 January 2006 has occurred which is not recoverable from the appellant.

An overpayment of HB for the period from 2 January 2005 to 14 December 2005 has occurred which is recoverable from the appellant.

The revised amount housing benefit determined to be recoverable is to be re-calculated by the NIHE.

(signed): K Mullan

Chief Commissioner

15 April 2014

Appendix - the submissions of the parties

As was noted above, in the application for leave to appeal which was submitted to OSSC, Miss Quinn began by addressing a ground which she had submitted in the application for leave to appeal which had been before the LQPM. In the original application for leave to appeal, Miss Quinn had submitted that in connection with the HB 'entitlement' decision, the statement of reasons for the appeal tribunal's decision was inadequate. This was because the statement of reasons was cross-referenced to a statement of reasons for an IS appeal which was heard and determined on the same day. The statement of reasons for the IS appeal had not been provided to the NIHE. In the application for leave to appeal which was submitted to OSSC, Miss Quinn submitted that having received the statement of reasons for the IS appeal and a subsequent decision in relation to the leave to appeal request, she no longer wished to pursue a submission that the decision of the appeal tribunal in respect of the HB 'entitlement' decision was in error of law.

Miss Quinn submitted, however, that the appeal tribunal erred in reaching its decision with respect to the HB 'overpayment' decision. Miss Quinn noted that the appeal tribunal had accepted that there had been an overpayment of HB amounting to £4,759.06 for the period from 20 September 2004 to 8 January 2006 but had decided that this was not recoverable from the appellant as it had arisen as a result of an official error. The error was that the NIHE had failed to make further enquiries in relation to the property formerly owned by the appellant.

Having noted the provisions of regulation 97 of the 2006 Regulations, Miss Quinn conceded that it was not in dispute that the appellant had informed the NIHE in his claim form to HB that he had owned the property in which he had previously lived. Miss Quinn submitted, however, that the appellant had also indicated that the property had been condemned by the environmental health department and was unfit for habitation.

In connection with the appeal tribunal's conclusions that the information supplied by the appellant should have prompted the NIHE to make further enquiries as to the disposal of the property, Miss Quinn submitted that HB had been paid to the appellant on the basis that he was in receipt of IS. Accordingly, any capital which he may have had would have been disregarded in accordance with paragraph 5 of Schedule 7 of the 2006 Regulations. She contended that the NIHE had no reason to doubt that IS branch were aware of the appellant's financial circumstances and, she submitted, it was not an '… unreasonable assumption given all the information supplied by (the claimant) on his housing benefit claim form in relation to the property.'

Miss Quinn submitted further that:

'… any failure by the Executive to make further enquiries regarding the disposal of the property does not constitute an official error because it cannot be said that (the claimant) did not contribute to the perceived error. As stated above the capital of an income support claimant is disregarded when assessing housing benefit. If (the claimant) had informed the income support office that he had changed address when he moved out of the property that he owned then the income support office would have realised that he had a capital asset which would no longer be disregarded as the property occupied as the home. This failure to disclose by (the claimant) caused the overpayment of income support which in turn contributed to the overpayment of housing benefit. I submit that it cannot be said that (the claimant) did not contribute to the error because if he had informed income support of the situation he would not have been in receipt of that benefit. The fact that (the claimant) was in receipt of income support contributed to the inaction of the housing benefit decision maker in relation to the investigation of his comments on the claim form in relation to the notional capital.'

Miss Quinn then submitted that even if the appeal tribunal was correct in finding that there had been an official error it was under a duty to go further '… to establish whether the appellant could reasonably have been expected to know that he was being overpaid benefit in accordance with regulation 97(2).' In connection with this issue, Miss Quinn submitted that despite making a finding in connection with the appellant's awareness of the capital rules applicable to claimants to HB, the appeal tribunal failed adequately to consider whether or not the appellant could reasonably have been expected to know that he was being overpaid. The failure to consider the issue or, at least, to record in the statement of reasons that the issue had been considered, rendered the decision of the appeal tribunal as being in error of law.

Miss Quinn then went on to make submissions about causation. She contended that the principles in the decision of the Court of Appeal in England and Wales in Duggan v Chief Adjudication Officer, reported as R(SB) 13/89 ('Duggan'), were equally applicable to HB and to the circumstances of the appellant in the instant case. She submitted that the fact that there had been an official error did not absolve the appellant from his continuing obligation to report a material fact. Miss Quinn submitted that the appellant had contributed to the overpayment through his failure to disclose to the IS section of the Social Security Agency the material fact that he had transferred his previous home to his brother. Had the appellant disclosed his new address to the IS section at an earlier stage then IS would not have continued in payment. Equally the appellant would not have been paid HB on the basis of the IS award.

As was noted above, on 14 March 2012 the application for leave to appeal was refused by the LQPM. In the further application for leave to appeal which was subsequently received in OSSC, Miss Quinn repeated the grounds which had been set out in the original application which had been before the LQPM.

In his initial written observations on what was at that stage an application for leave to appeal, Mr Hatton submitted that contrary to Miss Quinn's submission the appeal tribunal was correct to conclude that the overpayment arose as a result of an official error. The NIHE was under a legal obligation to confirm that the appellant was correctly in receipt of IS if this was the basis on which his capital was disregarded and entitlement to HB was awarded. The failure by the NIHE to confirm correct entitlement to IS, particularly in light of the information which had been made available, led to a mistake in the form of an omission. Accordingly, it was an official error which caused the overpayment of HB.

Mr Hatton noted that the rules which permitted the disregard of the capital, for the purposes of HB entitlement, of a claimant to IS, were to be found in regulation 41(2) and Schedule 7 of the 2006 Regulations. Noting the wording of paragraph 5 of Schedule 7, which provided for the disregard of the whole of the capital '… where a claimant is on income support', Mr Hatton observed that the precise phrase '… where a claimant is on income support' was not defined in the 2006 Regulations. In regulation 2(1) a 'person on income support' was defined as a person 'in receipt of income support' and a 'claimant' was defined as 'a person claiming housing benefit'. He concluded, therefore that for the purposes of the Regulations where a claimant is on IS, this means that person is in receipt of IS.

Mr Hatton submitted that in R v South Ribble Borough Council ([2000] EWCA Civ 318, Ribble') the Court of Appeal of England and Wales had considered an identically worded provision from the Housing Benefit (General) Regulations 1987. Referring to paragraph 27 of the judgment of Mr Justice Scott Baker he submitted that the Court of Appeal held that' ... in receipt of income support must be read as lawfully in receipt of income support.' The Court, it was submitted, also defined 'lawfully' as 'neither by fraud or dishonesty'. If that was the proper meaning of the relevant phrase then the NIHE would have to satisfy itself that the claimant comes within the legislation. An alternative argument was that the appellant was in receipt of IS during the relevant period as he was in actual receipt of the benefit during that period. Accordingly, if that 'receipt' was lawful he satisfied the conditions of paragraph 5 of Schedule 7 to the 2006 Regulations and his capital had to be disregarded. Even if it was later determined that there was no entitlement to IS for the relevant period that would not alter the fact that he was actually in receipt of IS during that period. Accordingly there could be no overpayment of HB as there was entitlement to it during the relevant period.

Mr Hatton also submitted that he was reinforced in his view that the NIHE was under a legal obligation to ascertain whether IS was being paid lawfully by regulation 11 of the Housing Benefit (Decisions and Appeals) Regulations Northern Ireland 2001, as amended ('the 2001 Regulations'). That regulation gave power to the NIHE to suspend payments where the issue arises as to whether a claimant meets the conditions of entitlement to HB. That would suggest that a decision maker in NIHE can 'go behind' the receipt of IS and suspend payments of HB if there are doubts as to whether the conditions of entitlement to HB are satisfied.

Mr Hatton noted that it appeared that NIHE had some doubts concerning the appellant's entitlement to HB which doubts appeared to stem from his previous ownership of his former home. Mr Hatton noted that following the making of the claim to HB, the appellant was written to with a request for further information regarding his former home. Further the appellant's case was also referred to the Benefit Investigation Unit in October 2004. Mr Hatton noted that in the appeal submission it was recorded that this '… was to check on the disposal of his previous home' but that '… nothing further came from this as no further action seems to have been taken as a result of this referral.' Mr Hatton also referred to a copy of a document which was produced at the appeal tribunal hearing. This was in the form of a computer 'screen-print' dated 23 September 2004 and, Mr Hatton submitted, represented the information which had been made available to the decision-maker in the NIHE following an enquiry into the appellant's IS entitlement. The 'screen-print' showed the appellant's address to be that of his former home and, as the information request post-dated the claim to HB and subsequent clarification inquiry, the NIHE must have known that the information provided was incorrect.

Mr Hatton submitted that on the basis of the doubts which the NIHE had, or should have had, about the correctness of the award of entitlement to IS, it was not sufficient to rely on the basic information which had been supplied in connection with the award of IS. Rather there was a requirement to go behind the award of IS:

'… in order to be satisfied that (the claimant) was lawfully receiving income support, especially in light of the doubts that the NIHE had regarding his entitlement. The NIHE have therefore failed to confirm that (the claimant) came within the regulations, despite having sufficient doubts … In our view, this constitutes a mistake in terms of regulation 97(3).'

Mr Hatton then turned to the assertion by the Department that any mistake by the Department did not amount to an official error as the appellant had contributed to any error. He submitted that it could not be said that the appellant caused or materially contributed to any mistake. If it was accepted that the mistake was that the NIHE had failed to confirm that the applicant was properly in receipt of IS then it could not be said that he had contributed to the mistake as he had provided all of the relevant information. Even if the wider approach adopted in R(Sier) v Cambridge City Council Housing Benefit Review ([2001] EWCA Civ 1523] 'Sier'), where it was held that it was necessary to consider whether the person had caused or materially contributed to the overpayment, then it still could not be shown that the appellant's failure to disclose to the IS section caused the overpayment or was a material contribution to it. What the applicant had failed to disclose to the IS section was his change of address. If the appellant had disclosed his change of address on the date on which that change occurred – 20 September 2004 – as he was required to do so, then the system would still have shown that he had a live claim to IS on 23 September 2004, which was the date on which the enquiry was made to the IS section by the decision-maker in housing benefit.

Even with an effective disclosure on 20 September 2004, no decision on the appellant's entitlement to IS based on that disclosure could have been made by 23 September 2004, due to the requirement for further evidence gathering and subsequent decision-making and the system would reflect this. Accordingly, when the enquiry was made by the HB decision maker to the IS section the system '… in all likelihood still would have shown (the claimant) having a live claim to income support despite the fact that he would have disclosed the change of circumstances.' In Mr Hatton's view the cause of the overpayment was the mistake by NIHE in not confirming that the appellant was lawfully in receipt of IS and in not following up the information disclosed by him when making his claim to HB and in the subsequent further queries by the decision-maker.

Mr Hatton then turned to the alternative argument put forward that if it was accepted that there was an official error, the appeal tribunal had erred because it did not consider or did not demonstrate that it had considered whether the appellant could have reasonably been expected to realize that he was being overpaid. Mr Hatton noted that the record of proceedings for the appeal tribunal hearing recorded that he had made a submission concerning reasonable expectation of being overpaid and that he had referred to regulation 97 of the 2006 Regulations. Accordingly, the appeal tribunal was aware of this legislative requirement for the recovery of an overpayment of HB and '… it is arguable that the tribunal has considered this provision and determined that he could not have realised that he was being overpaid as such a finding is implicit in the conclusion that the overpayment was not recoverable.' In the alternative if there had to be an explicit finding on the issue then it would have to be accepted that an omission by the appeal tribunal to make such a finding would amount to an error of law.

Nonetheless, in the submission of Mr Hatton, any such error would be insufficient to vitiate the decision of the appeal tribunal or, in the alternative, the Social Security Commissioner could set aside the decision and substitute a decision for that of the appeal tribunal. In relation to the potential for the substitution of a decision, Mr Hatton submitted that '… where the reason for loss of benefit is notional capital, that consideration of whether the person realized they were being overpaid is superfluous. (The claimant could only have realized that he was being overpaid housing benefit if he knew that he had notional capital.)'

Reference had been made to the finding by the appeal tribunal that the appellant had knowledge of the capital rules applicable to HB. Mr Hatton submitted that it could not be taken from such a finding that the applicant had knowledge of the deprivation of capital rules and that he knew that he had notional capital. Further, the appellant had provided the decision maker in HB with all of the information which had been requested and in light of that provision would have had no reason to believe that he was being overpaid HB.

Mr Hatton then turned to the submission that the appellant's failure to disclose was another cause of the overpayment and in accordance with the principles in Duggan, the overpayment was recoverable from him. Mr Hatton submitted that the decision in Duggan did not apply to HB appeals, especially in light of the decision of the Court of Appeal of England and wales in Sier. The HB scheme for determining recovery of an overpayment was wholly different to other benefit recovery schemes. Consideration of regulation 97 of the 2006 Regulations, taking account of the decision in Sier, would mean that a separate consideration of causation under Duggan would not be required. 'Any potential contribution to the overpayment made by a claimant has already been determined when considering if the claimant caused or materially contributed to the overpayment under Regulation 97(3).' Mr Hatton added that if he was incorrect on the non-applicability of Duggan then he would rely on the causation arguments which he had set out in connection with the applicability of regulation 97(3).

In her written observations in reply to those of Mr Hatton, Miss Murray began by making reference to the wording of regulation 41(2) and paragraph 5 of Schedule 7 of the 2006 Regulations. She indicated that she accepted that if there was a doubt about entitlement to one of the linked income-related benefits then it would be 'good practice' to check the relevant information. Whether a failure to carry out such a check amounted to an official error or, more significantly, an official error which resulted in an overpayment of benefit was another question. Miss Murray made reference to the policy considerations behind a scheme for 'passporting' entitlement to related social security benefits. It is worth setting out her comments in full:

'In general, disregarding the income and capital of a person on another income related benefit (commonly known as passporting) eases administration. The information is already held by government officials therefore it avoids duplication of work and also saves claimants from supplying, sometimes complex information several times. If housing benefit officers were obliged to check that income support was properly in payment in every case it would make the "passporting" regulations otiose. I submit therefore that it is neither practical nor necessary for officers to check such cases.'

Turning to the facts of the instant case, Miss Murray acknowledged that the appellant had indicated on his claim form to HB that the relevant property was condemned as unfit for habitation. Following a request for further information his solicitor had given further details about the value of the site of the property and details of its disposal to the appellant's brother. Miss Murray submitted that:

'It would appear, therefore, that on balance of probabilities the Executive were satisfied that this did not affect entitlement to housing benefit and awarded benefit accordingly on 19.10.2004. I submit that this was reasonable especially in view of the fact that the Executive would have no reason to think that the income support section of the Social Security Agency would not be advised of any relevant change of circumstances by (the claimant). It is also important to note that while the evidence may have cast doubt on the amount of capital (the claimant) had it was not conclusive that he did have capital, notional or otherwise that would be in excess of the limit permitted to receive housing benefit.'

Miss Murray then made reference to the referral by the NIHE of the appellant's case to the Benefit Investigation Unit. She noted that the referral form, a copy of which was attached to the original appeal submission as Tab No 7, contained inaccurate information. The form had recorded that the appellant had failed to declare that he had owned the property he had previously lived in which was erroneous. The appellant had clearly stated on the claim form to HB that he owned the property but had to move as it was not fit for habitation. Miss Murray conceded that the NIHE was unable to explain the reason for referral to the Benefit Investigation Unit and agreed that there may have been doubts as to the appellant's entitlement to HB but did not '… consider that this was of sufficient strength to deny him benefit while it was investigated.' She also noted that it appeared that no action was taken on the basis of the referral, there was no further documentation available and the NIHE was unable to explain what had occurred.

Miss Murray submitted that despite the failure to accord with good practice and undertake further investigation before awarding entitlement to HB benefit it did not necessarily follow that there would be no such entitlement. She also submitted that it was reasonable to have expected the Social Security Agency to have all of the relevant information and undertake its own investigation.

Miss Murray submitted that she was in respectful disagreement with Mr Hatton on the effect of the decision in Ribble. For the reasons which she had set out in connection with the 'passporting' of entitlement to related benefits, she did not accept the argument that the decision in Ribble obliged the NIHE to ensure that entitlement to IS was lawful. Further she submitted that '… where a claimant deprives himself of capital to ensure entitlement to benefit, the benefit could not be said to be lawfully paid.' In connection with Mr Hatton's submission that the appellant's actual receipt of housing benefit during the relevant period equated to a parallel entitlement to housing benefit, she submitted that '… it would create an absurdity if someone received benefit which lead to the payment of another benefit and there were no consequences if this was discovered later. This would be contrary to the Ribble decision.'

Referring to Mr Hatton's submission in connection with regulation 11 of the 2001 Regulations, Miss Murray submitted that the regulation 11 power was widely used where a doubt arose after benefit had been awarded and ongoing payments are being made. If a doubt had arisen before an entitlement had been awarded it would be unlikely that an award would be made and payment suspended immediately. While conceding that an award does not have to be made where there is a doubt about entitlement, she also submitted that the '… purpose of the 'passporting' rules would be otiose if every income related benefit claim was to be checked.'

In connection with Mr Hatton's submission concerning the significance of the 'screen-print' dated 23 September 2004, Miss Murray contended that it was likely that the HB decision-maker used the form solely to confirm that IS was in payment and that either the significance of the address may not have been realised or that it was considered that the address had not been updated. Miss Murray also submitted that any doubts which might have arisen concerning entitlement to HB were, at best, doubts and that this did not constitute an official error. Further '… even if the failure of the Executive to query the discrepancies did constitute an official error it did not cause the overpayment which, accordingly, remained recoverable from the appellant.'

Miss Murray also returned to the issue of how the appeal tribunal dealt with the question of whether the appellant realised that he was being overpaid HB. Her view was that it was not clear that the appeal tribunal had addressed this matter. Miss Murray agreed with Mr Hatton that if there was an error in the manner in which the appeal tribunal addressed this issue then it would be practical for the Commissioner to set aside the decision and substitute his own decision. Nonetheless, she also submitted that it might be necessary for the matter to be remitted to another appeal tribunal. In connection with the substantive issue she indicated that she was, once again, in respectful disagreement with Mr Hatton:

'In this case (the claimant) did notify the Executive of the details of his previously owned property but I submit that it was (the claimant's) failure to notify income support of the change of address that caused the overpayment of both income support and housing benefit. I also submit that as it has been decided that he deliberately disposed of capital in order to obtain benefit it is reasonable to conclude that he realized he was being overpaid benefit.'

In a further submission on the written observations in reply from Miss Murray, Mr Hatton returned to the issue of the significance of the decision in Ribble. He was of the view that:

'Either receipt is sufficient (with the exception of receipt by fraud) or receipt is to be read as "entitled" and in those circumstances the Executive would have to satisfy itself that the person is correctly entitled to income support …

The Department's submission can therefore be summarised as receipt of income support must be interpreted as properly entitled in order to attract the disregard in paragraph 5 of Schedule 7, because if the person is later found not to have been properly entitled, mere receipt of the benefit is not enough. Equally however, the Department also submit that the Executive are entitled to rely on receipt of income support at the time the decision is made without making further enquiries as to whether the person is properly entitled at that time. Such an approach requires two differing interpretations of receipt depending on when one is considering the application of the disregard and such an approach would not be permissible in law.'

Mr Hatton submitted that, instead and on a literal interpretation, '… simple receipt is sufficient even if found later to be receipt based on non-entitlement.' Alternatively, there was an obligation on the NIHE to satisfy itself that a claimant is properly entitled to IS before finding that the disregard in paragraph 5 of Schedule 7 applies. Ordinarily a simple check on the IS system with an inherent assumption that the information is accurate would be sufficient. Where, however, and was the case in the instant appeal, there was information disclosed to the NIHE which indicated that there were doubts about proper entitlement then there was a duty to ensure that the disregard properly applies before making a payment of HB. That places an obligation on the NIHE to take further action and the failure to do so in the instant case is a 'mistake' under regulation 97(1).

Mr Hatton added that it was not possible to take from the appeal tribunal's findings that the appellant knew about the capital rules for entitlement to HB, in the context of assessing his level of knowledge in determining the question of deprivation, and that, accordingly, he knew about the notional capital rules and, onward, that he knew he was being overpaid. Further, he could not accept the Department's submission that '… if a person deliberately disposes of capital, they will know they are getting benefit under false pretences.'

Mr Hatton and Miss Murray précised their detailed arguments in the Case Summaries for the oral hearing of the appeal and at the oral hearing presented their respective submissions in considerable detail. At the oral hearing I requested additional submissions on the question of potential recovery of HB submitted to have been overpaid following the date of disclosure by the appellant to the Social Security Agency of a difference in his address.

In her submission on this issue, Miss Murray began by analysing the effect of the delay by the 'Agency' in failing to react to information that cast doubt on entitlement to IS. That information was, initially, in the form of an 'A2' review form which was returned by the appellant on 11 April 2005. Miss Murray submitted that while the appellant indicated a different address to that held by the office administering his claim to IS he also indicated that he both owned his own home and that he rented his home from a private landlord. That rendered that information '… contradictory and inconclusive as to whether the appellant had any capital, notional or otherwise.' The second piece of information which might have alerted the Agency was the return of a 'change of address' form. Once again, however, Miss Murray submitted that this was not conclusive that capital was an entitlement issue. Overall, Miss Murray submitted that while it could be argued that the Agency should have suspended payment of IS earlier than it did it was also '… not unreasonable not to suspend benefit until more concrete evidence was received.' She cited the decision of the Commissioner in Great Britain in CH/454/2005 in support of this.

Miss Murray also noted that it appeared that the IS computer system had not recorded that there was an interest in the IS claim from HB. Accordingly, the Agency had not notified the NIHE of the disallowance of IS. Miss Murray submitted that the appellant had a duty to notify the NIHE when IS ceased and did not do so until the housing benefit review form was sent to him. The initial claim form to HB stated that the appellant was under a mandatory duty to inform the NIHE of any changes in circumstances and, more specifically, was mandated to inform NIHE 'immediately and in writing' if he stopped or started getting IS. Miss Murray noted that the HB review form completed by the appellant was not received in NIHE until 16 December 2005. The appellant had indicated on the form that his entitlement to IS had been suspended since September 2005. Miss Murray noted that IS had actually been suspended on 27 July 2005 and was disallowed on 11 November 2005. The next action taken by the NIHE was on 25 January 2006 to confirm the position with regard to IS entitlement. Following confirmation that entitlement to IS ceased on 20 September 2004, entitlement to HB was suspended immediately.

Miss Murray submitted that the delay in actioning the information received from the appellant on 15 December 2005 until 25 January 2006 did not constitute an official error. Referring to a series of decisions of the Social Security Commissioners on the issue she submitted that there was no clear principle as when any delay would constitute an official error. She submitted that the decision of the Commissioner in Great Britain in CH/454/2005 provided useful guidelines when considering delays. In the instant case and given the holiday Christmas period between 15 December 2005 and 26 January 2006 she could not conclude that the delay amounted to an official error.

Finally Miss Murray made a reference to the decision of the Commissioner in Great Britain in R(H) 1/04 which, she submitted, supported her earlier argument that the NIHE was not under any duty to consider whether the appellant had a proper entitlement to income support.

In his further submission, Mr Hatton submitted that it was difficult to accept that the delay in actioning the information received from the appellant on 15 December 2005 until 25 January 2006 was not an official error. He submitted that as of 15 December 2005 the appellant had disclosed that he was no longer in receipt of IS; as receipt of IS was the basis of his entitlement to HB, the fact that entitlement to IS had ended was clearly a material change in circumstances. Nonetheless, he continued to be paid HB until 25 January 2006. Mr Hatton submitted that he had considered the decision of the Commissioner in Great Britain in CH/454/2005 which had been cited by Miss Murray in support of her submission that the delay, occurring as it did, over a holiday period did not constitute an official error. Mr Hatton submitted that the Commissioner in that case had referred to '… only protracted delays possibly amounting to official error.' As the change disclosed by the appellant clearly affected entitlement to and as was evidenced by the action taken on 25 January 2006, it did not require further detailed investigation but merely a telephone call to the IS office. Accordingly, there was a '… strong indication that the failure to process the change earlier and stop payments more quickly was an official error.'

Mr Hatton also submitted that the detail of the screen print provided by Miss Murray in her further post-oral submission added to his own previous submission that even if the appellant had, at the time of his claim to HB, disclosed to IS that he had changed his address the IS system would not have been amended by the time the officer from NIHE checked it on 23 September 2004. Accordingly, the decision to award entitlement to HB would not have been any different. Finally, Mr Hatton submitted that the decision in R(H) 1/04 which had been referred to by Miss Murray could be distinguished. This was because the Commissioner in R(H) 1/04 had not considered whether the local authority in that case was under a duty to investigate entitlement to IS as no argument to that effect had been put to him. In addition, in the instant case, it was clear that the NIHE had doubts about the appellant's capital. Despite making further enquiries and referring the case to the Benefit Investigation Unit, the NIHE still made a decision to award entitlement to HB.

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	Northern Ireland - Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> JO'D -v- Department for Social Development (HB) [2014] NICom 17 (15 April 2014) URL: http://www.bailii.org/nie/cases/NISSCSC/2014/17.html Cite as: [2014] NICom 17