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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 >> DH-v-Department for Social Development (HB) [2012] NICom 330 (24 October 2012) URL: http://www.bailii.org/nie/cases/NISSCSC/2012/330.html Cite as: [2012] NICom 330

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DH-v-Department for Social Development (HB) [2012] NICom 330

Decision No: C1/12-13(HB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 HOUSING BENEFIT Application by the landlord for leave to appeal and appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 20 April 2010 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 20 April 2010 is in error of law. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal. 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.
2. My decision is to remit this case to the Northern Ireland Housing Executive (NIHE) for reconsideration of the decision-making process in line with the guidance set out in the 'Disposal' section below.

Background

3. The appellant is the landlord of a property in Lurgan, Co Armagh. His tenant claimed and was paid housing benefit (HB) for this property from 21 October 2002. HB was paid directly to the appellant, as requested by the tenant.
4. On 28 October 2008, the NIHE received information from the Social Security Agency Data Matching Service that income support (IS) had ceased to be in payment to the appellant's tenant from 21 February 2008 as the tenant was in legal custody. It was later confirmed that the tenant was sentenced to a term of imprisonment on 22 February 2008 and was not expected to be released until 2010.
5. On 26 November 2008 the decision making the award of entitlement to HB was superseded and disallowed from and including 25 February 2008. Also on 26 November 2008, and as a result of the supersession decision, an overpayment decision was made for the period from 25 February 2008 to 9 November 2008 amounting to £2,956.10. The overpayment was made recoverable from the appellant, as the landlord. The appellant was notified of the overpayment decision on 26 November 2008. On 19 October 2009 an overpayment notification letter and an overpayment schedule were sent to the tenant. On 1 December 2008 a letter of appeal was received from the appellant. On 19 December 2008 the decision dated 26 November 2008 was reconsidered but was not changed.
6. An oral hearing of the appeal took place on 20 April 2010. The appellant was present and the NIHE was represented by a presenting officer. The appeal tribunal disallowed the appeal and confirmed the decision dated 26 November 2008. On 6 August 2010 an application for leave to appeal was received in the Appeals Service. On 19 August 2010 the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

7. On 10 September 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 9 November 2010 written observations on the application for leave to appeal were sought from Housing Benefit Advice (HBA) and these were received on 6 December 2010. In these initial written observations, Miss Murray, for HBA, conceded that there were errors in the appeal tribunal's decision and made suggestions as to how the appeal might be progressed. Written observations were shared with the appellant on 10 January 2011.
8. On 4 August 2011 I directed an oral hearing of the application. The oral hearing took place on 22 November 2011. At the oral hearing the appellant was present and was unrepresented. Miss Murray appeared on behalf of HBA accompanied by Mr Murphy. I am grateful to all for the detailed and constructive oral submissions which were made. At the oral hearing two further issues arose and I requested HBA to prepare an additional submission in connection with these. The further submission from Miss Murray was received on 16 February 2012 and was shared with the appellant on the same date. A further submission in reply was received from the appellant on 21 March 2012.

Errors of law

9. 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.
10. 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."

Why was the decision of the appeal tribunal in the instant case in error of law?

General legislative background

11. 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 Regulations 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

12. 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.'

13. Regulation 97 of the Housing Benefit Regulations (Northern Ireland) 2006, 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;

(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.

(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.'

14. Regulation 98 of the Housing Benefit Regulations (Northern Ireland) 2006, 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.'

15. In R(H) 6/06, a decision of a Tribunal of Social Security Commissioners in Great Britain, were concerned with legislative provisions which are similar to those applying in Northern Ireland, namely section 75 of the Social Security Administration Act 1992, as amended, regulation 101 of the Housing Benefit (General) Regulations 1987 and the substituted regulation 102 of the Housing Benefit Regulations 2006. Certain of the wording of the latter regulation is similar to regulation 98 of the Housing Benefit Regulations (Northern Ireland) 2006.
16. The facts were that the claimant was awarded HB with effect from 22 January 2001. In early 2003, it came to the attention of the local authority that he had become a full-time student in 2002 and had been awarded a student loan. The claimant was interviewed and, on 22 April 2003, the local authority superseded the award of HB with effect from 2 September 2002 and decided that he was not entitled to HB from that date. It also decided that £6,711.15 had been overpaid from 2 September 2002 to 20 April 2003 and that that sum was recoverable from the claimant. He did not challenge that decision. On 5 September 2003, he was conditionally discharged for two years by a magistrates' court and ordered to pay £100 costs, having pleaded guilty to "various benefit fraud" charges related to the decision. He started to repay the overpaid benefit at the rate of £100 per month.
17. The claimant's rent had never been referred to a rent officer because the local authority had been under a misapprehension as to the landlord's status. Having discovered this error, the local authority revised or superseded the award of HB from 22 January 2001 to 1 September 2002, deciding that the claimant had been entitled to only £70 per week until 2 December 2001 and to nothing thereafter and that, in consequence, £13,785.98 had been overpaid to the landlord and was recoverable from it. It appears from later correspondence that the overpayment had arisen due to a misrepresentation by the landlord. The landlord did not challenge the decision. Nor did it challenge similar decisions made in respect of other tenants for the period up to 23 June 2003.
18. However, the claimant, who had been given notice on 5 November 2003 of the decision that the overpayment up to 1 September 2002 was recoverable from the landlord, did react to that decision. On 24 November 2003, he wrote to the local authority arguing that, to the extent that his HB should have been restricted from 2 September 2002, the overpayment from 2 September 2002 to 20 April 2003 should also be recovered from his landlord and not from him. He said that, had his eligible rent been limited, he would have sought alternative accommodation and so reduced his liability for rent. On 19 December 2003, the local authority refused to supersede the decision of 22 April 2003, stating that the whole of the overpayment from 2 September 2002 was attributable to the claimant's own failure to declare his change of circumstances because, without that failure to disclose a material fact, no HB would have been paid. After unsuccessfully applying for a revision of that decision the claimant appealed and, on 8 June 2004, the tribunal dismissed his appeal.
19. At paragraphs 59 to 61 of their decision, the Tribunal of Commissioners discuss the proper approach to the decision-making process where there is joint liability, as follows:

'Decisions where there is joint liability

59. It seems to us that a lot of confusion might have been avoided if, where overpayments were recoverable from more than one person concurrently, local authorities had issued decisions in respect of all those from whom they were recoverable. Had that been done, the erroneous idea that the legislation provided for overpayments to be recoverable from only one person would not have taken such a hold. The problem seems to have been caused by local authorities deciding from whom they would recover an overpayment before issuing any decision as to recoverability. Logically, as we have said, the choice as to against whom to enforce a right of recovery does not arise until it has been decided from whom the overpayment is recoverable. Making decisions against all of those from whom an overpayment is recoverable is also right in principle. It is difficult for a local authority to justify not making a decision against any person from whom it is entitled to recover public money. Equally, any person from whom it is decided that an overpayment is recoverable is entitled to a decision which shows from which other persons the local authority is also entitled to recover the overpayment.

60. In every case where a recoverable overpayment has been made, the local authority should make a single decision referring to all of those from whom the overpayment is recoverable, rather than separate decisions addressed to each of them. Moreover, where a local authority decides that an overpayment is not recoverable from the person to whom it was made, a proper decision to that effect should be made and included within the decision as to the person from whom the overpayment is recoverable. It should then be communicated to the person to whom the overpayment was made and to those from whom it is recoverable. The advantage of that is that, if there is an appeal, all those potentially affected by the appeal will be parties to the proceedings and neither the local authority nor a tribunal will consider one person's liability without regard to the liability of others. As the local authority has to go through the process of identifying those from whom an overpayment is recoverable before taking any action to recover it, we do not consider it will be burdensome to record the decision properly and issue copies to all those concerned.

61. If, contrary to that suggestion, a local authority issues a decision against only one of, say, two people from whom an overpayment is recoverable, it seems to us that, on an appeal, the appellant will be entitled to a finding that he or she is not the only person from whom the benefit is recoverable. However, the tribunal will not be entitled to make a decision against both people because the other will not have been a party to the proceedings. Consequently, the tribunal will be limited to setting aside the decision under appeal and leaving it to the local authority to make another decision against both people. That is not a unique situation because it is well established that a tribunal has a similar power to set aside a decision without substituting another decision in a case where it finds the decision under appeal to have been made without jurisdiction. As Mr Kovats and Mr Maurici both observed, there is nothing in the 2000 Act to suggest that a tribunal has no power effectively to remit a case to a local authority where that appears to be more appropriate than substituting its own decision.'

20. I accept and apply the principles set out in R(H) 6/06. The Tribunal of Commissioners were correct to state that:

• The choice as to against whom to enforce a right of recovery does not arise until it has been decided from whom the overpayment is recoverable

• Making decisions against all of those from whom an overpayment is recoverable is also right in principle

• It is difficult for a public authority, such as the NIHE, to justify not making a decision against any person from whom it is entitled to recover public money

• Equally, any person from whom it is decided that an overpayment is recoverable is entitled to a decision which shows from which other persons the public authority is also entitled to recover the overpayment

21. Miss Murray, on the basis of the principles set out in R(H) 6/06, concedes that the decision of the appeal tribunal was in error of law in that the appeal tribunal did not consider whether the overpayment was recoverable from the claimant, as the tenant, as well as the appellant, as landlord. I agree with the concession which has been made by Miss Murray. The decision-maker in the NIHE should have made a single decision referring to all of those from whom the overpayment was recoverable, the claimant and the appellant, rather than separate and single decisions addressed to each of them. Further, the appeal tribunal ought to have considered the principles set out in R(H) 6/06, and satisfied itself that the proper decision-making process, in line with the principles set out in R(H) 6/06, had been carried out. If the proper decision-making process had not been carried out then the duty of the appeal tribunal was to remit the case back to the NIHE to undertake the proper remedial decision-making action. Its failure to do so renders its decision as being in error of law. I accept, however, that the appeal submission prepared for the appeal tribunal hearing did not make reference to the principles deriving from R(H) 6/06 and the appeal tribunal was not assisted in this regard.
22. In respect of this, it will be incumbent on NIHE decision-makers to ensure that future decision-making in overpayment cases involving payments directly to a landlord is undertaken in accordance with the principles in R(H) 6/06. Equally it will be incumbent on those responsible for the preparation of appeal submissions in such cases to review the decision-making process which has been carried out, to set out the relevant principles in the appeal submission prepared for the appeal tribunal hearing and to provide guidance as to whether the decision-making process has been accurate.
23. Miss Murray has submitted that the decision of the appeal tribunal is in error of law on another basis which is that the appeal tribunal failed to consider the temporal point at which the appellant knew or ought to have known that his tenant was no longer occupying the relevant property. It is important to remember that the decision made by the NIHE was that an overpayment of HB had occurred for the period from 25 February 2008 to 9 November 2008 and that the overpaid HB was recoverable from the appellant. The decision of the appeal tribunal was to confirm the NIHE decision, such confirmation including a decision that the overpaid HB was recoverable for the entire period from 25 February 2008 to 9 November 2008.
24. In the statement of reasons for the appeal tribunal's decision, the following is recorded:

'The Tribunal found that (the landlord) failed to disclose the material fact that (the tenant) was a sentenced prisoner. Although (the landlord) contacted the Housing Executive in June 2008 he did not give the correct information to the Housing Executive, having told them that (the tenant) was arrested and not sentenced. (The landlord) and (the tenant) did not contact the Housing Executive at any other time up to the cancellation of the claim. The Tribunal did not accept that (the landlord) gave sufficient details when he contacted Lurgan Office in June 2008 to alert the office to the fact that (the tenant) was sentenced and that the claim should stop as confirmed by (the landlord) in his appeal letter where he says "also in hindsight accepted that I should have made it formally known to your offices that my tenant had been arrested". The Tribunal did not accept that the contact in June 2008 was any more than a general query.'

25. The concentration by the appeal tribunal is on the period from June 2008 to the end of the overpayment period of 9 November 2008. June 2008 has been chosen because this was the period from which the appellant had submitted that he was aware that his tenant was no longer in occupation of the property. It is the case, in fact, that there was some evidence that the appellant was aware in May 2008 that his tenant was no longer occupying the property. At Tab 31 of the appeal submission there is a record of a telephone conversation between the appellant and an officer in NIHE in which the date of May 2008 is mentioned. In the letter of appeal, the appellant mentions June 2008. In his oral evidence to me at the oral hearing of the application he mentions May or June 2008.
26. The appeal tribunal appears to have accepted that the appellant had actual knowledge from June 2008 that his tenant was no longer occupying the relevant property. The appeal tribunal, of course, did not accept that the appellant, armed with the relevant knowledge, disclosed in an adequate manner, the relevant fact that his tenant was no longer occupying the property. What is missing from the appeal tribunal's analysis is the state of the appellant's knowledge for the period from 25 February 2008, the first date on which there could be no entitlement to HB, to the period of first actual knowledge on the part of the appellant. It is important to recall that the appeal tribunal determined that the overpaid HB was recoverable from the appellant for the entirety of the period. Could liability for overpaid HB be laid at the door of the appellant if he did not actually know that his tenant was no longer occupying the relevant property?
27. Miss Murray, in her initial written observations on the application for leave to appeal, submitted that it was not enough for the decision-maker, or indeed the appeal tribunal, to determine when the appellant had actual knowledge of the fact that his tenant was no longer occupying the property. She cited the decision of the Social Security Commissioner in Great Britain in CH/1129/04 and, more particularly, paragraphs 21-22 of that decision, as follows:

'When I probed further, pointing out that the landlord, who lived locally, had continued to receive the benefit while knowing that the claimant had left, the council responded that it did not know how often the landlord, who owns much local property for which housing benefit is paid, checked his properties for continued occupancy, but it had no evidence to indicate that he had accepted housing benefit knowing the claimant had left. It added that since the claimant had not told it or the DSS that he was leaving, it was "questionable" whether he had told the landlord either.

We have many appeals from landlords raising just these points, and we customarily dismiss them. It behoves landlords who receive housing benefit to ensure that they do know what their tenants are doing by carrying out regular checks…'

28. I am not sure whether this passage, taken out of the context of the particular case, can be elevated to a precedential principle. I do accept, however, that a landlord who is in receipt of HB in respect of a tenancy of a property which he owns is under a duty to ensure that the circumstances giving rise to the benefit entitlement remain extant. If a landlord discovers that there has been a change in those circumstances then he or she will be under a duty to disclose that change. I also accept that a landlord may be deemed to have constructive knowledge of a change of circumstances where there is a failure to undertake a regular review of the circumstances giving rise to entitlement. In turn, where there has been an overpayment of HB based on a failure to disclose a change, undiscovered due to an omission to review, then liability for that overpayment might lie at the door of the landlord.
29. Miss Murray requests that I give guidance as the factors to be considered by decision-makers (and, presumably, appeal tribunals) in deciding whether landlords should have constructive knowledge of changes resultant on a failure to undertake a regular review. Given that every case will be fact-specific it will be very difficult to give such general guidance. All will depend on the individual circumstances of each case. In the instant case, for example, the appellant's evidence to me was that the tenancy had been in existence since 2002; that the tenant had made the regular 'top-up' payments in respect of his liability to rent; and that the appellant was a good tenant who had not caused any difficulty in respect of the tenancy. I can understand, in those circumstances that there would be no requirement for the landlord to undertake very regular checks to ensure that the circumstances giving rise to the tenancy remain extant and that something like a quarterly check would be reasonable. Equally, where there is a short-term tenancy, with a new tenant, unknown to the landlord, a very regular check might be reasonable.
30. I am of the view that the appeal tribunal was under a duty, to consider and clarify the temporal point at which the appellant knew or ought to have known that his tenant was no longer occupying the relevant property. The appeal tribunal imposed liability on the appellant for the overpaid HB for the whole of the period from 25 February 2008 to 9 November 2008. The basis of the liability was the knowledge of the appellant that his tenant was no longer occupying the property in respect of which HB was being paid and his failure to disclose his knowledge in an adequate manner to the NIHE. The appeal tribunal only considered the state of the appellant's knowledge for part of the period for which it imposed liability. It was under a duty to consider the appellant's knowledge, actual and constructive, for the whole of that period. Its failure to do so renders its decision as being in error of law.
31. That is not the end of the matter, however. The position of the NIHE was that information concerning the tenant's absence from the property in respect of which HB was being made, came to the knowledge of the NIHE in November 2008, following receipt of information received from the Social Security Agency following a data match exercise carried out by Data Matching Services on 28 October 2008. During the course of the oral hearing of the application, I noted that in paragraph 15 of section 4 of the original appeal submission, there was a statement that IS, which had been in payment, had ceased on 21 February 2008. I requested further information concerning the possibility for communications between other branches of the Department or the Social Security Agency (SSA) and NIHE. Following a short adjournment certain information was helpfully provided by Mr Murphy and Miss Murray undertook to provide an additional submission addressing the issues which arose.
32. The first issue was whether the SSA had properly notified NIHE that the tenant's entitlement to IS had stopped. Miss Murray's submission in respect of this issue was as follows:

'2. An officer from the Agency's Jobs and Benefits Office in Lurgan provided computer printouts regarding the sharing of information between that office and the Executive in relation to (…) (the landlord's), tenant:

1. The first printout indicates that the Agency notified the Executive on 30th May 2002 that income support had been awarded from 16th May 2002. (…)

2. The second printout shows that during the life of the claim the computer held the indicator "Y" showing that housing benefit was in payment. (…)

3. The third printout shows that the Agency notified the Executive on 21.09.08 that income support had ceased. (…)

3. The Agency later confirmed that income support had been in payment on the basis of (the tenant's) claim for incapacity benefit and that a data match on 15.09.08 indicated that the incapacity claim had ended. The incapacity benefit system was then checked and showed that the claim ended as (the tenant) was imprisoned. (…)

4. An officer of the Agency's Incapacity Benefits Branch later confirmed that the Prison Service notified the Agency's Fraud Liaison Officer that (the tenant) was sentenced to prison. The Fraud Liaison Officer then notified Incapacity Benefits Branch and on 11th March 2008 a decision maker disallowed the incapacity benefit claim (no benefit was in payment but (the tenant) was receiving national insurance credits). The computer system indicates that Incapacity Benefits Branch was aware that income support was in payment but there is no evidence that the Lurgan office was informed when the incapacity claim ended. In addition to information held on computer systems there is a form that is held in hard copy benefit files that is returned to the relevant income support office if an incapacity benefit credits only case ends. The papers however are no longer available so it cannot be determined whether or not this was ever issued, however as the Lurgan Office did not take any action it is unlikely that they were informed by Incapacity Benefits Branch. Incapacity Benefits Branch would not hold information in relation to housing benefit. (…)

5. The Executive also provided a printout showing the notification received from the Lurgan office of the Agency. (…)

6. The evidence would indicate that there was a breakdown in communication between Incapacity Benefits Branch and Lurgan Jobs and Benefit Office which resulted in an overpayment of income support. The Lurgan Office did promptly notify the Executive when income support eventually ceased but the Executive failed to action this. I accept that these failures by both the Agency (Incapacity Benefits Branch) and the Executive mean that there was an official error in relation to the payment of housing benefit from 11th March 2008 or soon after allowing time to react to the information.'

33. The second supplementary issue was whether any official error would render the overpayment of HB not to be recoverable. Miss Murray's response to this issue was as follows:

'8. Regulations 97 of the Housing Benefit Regulations (Northern Ireland) 2006 provides that any overpayment is recoverable unless it arose in consequence of an official error unless the claimant or person who received the benefit could reasonably be expected to realise it was an overpayment:

…

9. I submit however that despite this my original submission still applies in relation to recovery from both (the landlord) and (the tenant) because the official error was not the only cause of the overpayment.

10. At the hearing of (the landlord's) appeal, Commissioner's decision [2009] UKUT 176 (AAC) DL v Liverpool City Council (CH/448/2009) was introduced in relation to the issue of a landlord's duty. However the Commissioner also considered the issue of the recoverability of an overpayment due to an official error. The circumstances were that the claimant had died and when the Department for Work and Pensions became aware of this, they failed to notify the Local Authority that was administering housing benefit. This was an official error. The Commissioner in that case also considered the landlord's actions. He found that in the early part of the period after the claimant's death there was nothing that would reasonably have caused the landlord to realise that too much housing benefit was being paid. Although this meant that the overpayment could not be recovered from the landlord the Commissioner did not specifically address the issue of disclosure in detail. The claimant in that case had died therefore there was no issue of disclosure from him.

11. In the instant case I accept that there was an official error for part of the period as indicated … above. I submit however that the official error was not the only cause of the overpayment. As submitted in my original observations both … (the tenant and housing benefit claimant) and (the landlord) failed to disclose the material fact that (the tenant) no longer lived in the property. I submit that as there was more than one cause of the overpayment that it is still recoverable from (the tenant) and (the landlord) because one of the consequences of neither party disclosing the correct information was that the overpayment occurred.

12. In the Court of Appeal Judgement, Duggan v CAO, reported in the appendix to R(SB) 13/89, May LJ held:

"… The wrong assumption by the Adjudication Officer may in certain circumstances have been a cause of the overpayment, but it does not follow that it was the sole cause. As a matter of common-sense, which questions of causation always are, if one poses the questions: did the failure of the claimant to disclose the fact that his wife was in receipt of unemployment benefit have as at least one of its consequences the overpayment of the supplementary benefit?' the only reasonable answer that one can give is 'yes'. … It may be … that there were two causes of the consequence … but certainly one of the causes was the failure of the claimant, albeit wholly innocently, to comply with his continuing obligation … to disclose a material fact."

In the same decision Croom-Johnson LJ accepted the finding of the Commissioner when he said:

"… it is well established that negligence on the part of the Department does not itself exonerate a claimant from his or her obligation under the relevant legislation ….. Even if the adjudication officer were carrying out his duties negligently [by not making more enquiries] that does not take the matter any further in favour of the claimant as it does not enable the claimant to say that if that be the case then in some way or other the claimant not having disclosed a material fact it exonerates him from so doing and the overpayment was not made in consequence of his failure to disclose…"

13. This decision was endorsed in decision R(IS) 6/03 Court of Appeal Morrell v Secretary of State for Work and Pensions [2003] EWCA Civ 526 and found to apply equally to misrepresentation as well as failure to disclose.

14. I submit that it equally applies to housing benefit and to the landlord (who was paid the housing benefit) as well as the claimant. Therefore despite the fact that for part of the period there was an official error, I respectfully submit that the fact that an official error occurred does not absolve either (the tenant) or (the landlord) from proper disclosure of the relevant information and my original submission continues to apply.'

34. I am grateful to Miss Murray (and to Mr Murphy) for her forensic examination of the issues which had been made and for her detailed further submissions on these issues. I am not, however, able to analyse the impact of the conceded official error on the ability of NIHE to recover overpaid HB and from whom. That is because my overall decision is to remit this case to NIHE for reconsideration of the decision-making process, as set out below.

Disposal

35. The decision of the appeal tribunal dated 20 April 2010 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.
36. My decision is to remit this case to NIHE for reconsideration of the decision-making process. Primarily this is to permit NIHE, if it is so minded, to make a single decision referring to all of those from whom the overpayment was recoverable, the tenant and the appellant, rather than separate and single decisions addressed to each of them. Any such decision will, of course, have to advise all parties affected by them of their appeal rights. Although it will be entirely a matter for NIHE, it seems to me that consideration might be given to the state of knowledge of the appellant, both actual and constructive, and the temporal point at which that knowledge arose, of the fact that his tenant was no longer occupying the property in respect of which HB had been paid. Consideration might also be given to the effect of that state of knowledge on the period over which HB is submitted to be overpaid and from whom it is submitted to be recoverable. Finally consideration might be given to the effect of the conceded official error on the ability of NIHE to recover overpaid HB and from whom. In relation to the latter, it may be the case that NIHE will maintain the position set out so succinctly by Miss Murray in her most recent submission. That will be a matter, at the end of the day, for NIHE itself.

(signed): K Mullan

Chief Commissioner

24 October 2012