[2024] UKUT 39 (AAC)

This regulation imposes a general duty on the claimant to report any change of circumstances to the authority which might affect their right to, the amount of, or the payment of, benefit.

Having decided the decision of the FTT is in error of law and further findings of fact are required I am not required to consider other issues raised by this appeal ,however, it may be helpful to consider some of those issues.

The Housing Benefit Regulations 2006 SI No 213 provide for extended payments if certain criteria are fulfilled, including receipt of a “qualifying income-related benefit”: regulation 72(1)(a).The definition of “qualifying income-related benefit” is contained in regulation 2(1) of the 2006 Regulations;

This issue is relevant to whether the Respondent was or could have been in receipt of extended payments and therefore to the amount of any overpayment. The Respondent stated she was advised by DWP she would be entitled to extended payments of HB for a further 4 weeks.

Counsel for the Appellant local authority argued that the Respondent’s award of UC was terminated with effect from January 24th, 2020. The Respondent was therefore overpaid HB from January 27th, 2020, the date on which the first payment of HB was made through a credit to her rent account. He submitted universal credit is not a qualifying income-based benefit for the purposes of Regulation 2 of the Housing Benefit Regulations 2006.

Counsel for the Appellant argues the definition of “qualifying income-related benefit” in regulation 2(1) of the 2006 Regulations refers to three legacy benefits: income support, income-based jobseeker’s allowance and income-related employment and support allowance. UC is not listed in the definition and is not therefore a “qualifying income-related benefit”. He argues there is no way to read regulation 2(1) as if UC was listed in the definition. He submits therefore the amount of the overpayment of HB falls to be calculated on the basis that CA had no entitlement to extended payments of HB.

The Respondent’s representative in her further submission does not dispute the end date of the universal credit claim as 24^th January 2020. She disagrees however with the submission that UC is not a qualifying benefit. She submits that if the local authority’s interpretation of Regulation 2 is correct then Regulation 72(1)(c) will soon be otiose due to the decreasing numbers of people in receipt of legacy benefits and this interpretation is contrary to public policy. She also argues that as universal credit largely replaces the benefits referred to the provision should be read to include it.

While the Respondent's argument may have some force in logic, in considering the interpretation of this statutory instrument, I am mindful of the primacy of the text taking into account the regulation as a whole and that words should be given their ordinary natural meaning in this context ( R on the application of O (a minor, by her litigation friend AO)) V SSHD [2022] UKSC 3. On that basis I do not consider there is any way to read this provision as including universal credit as a qualifying benefit without effectively redrafting the regulation or at the very least straining the statutory language far beyond its ordinary natural meaning. As such in my judgement, universal credit is not included regulation 2 and the Respondent would not have been eligible for extended payments on this basis. This view is not however, material to my decision in this case.

The appeal against the Secretary of State’s decision of 27^th April, as reconsidered on the 25th of June 2020, is remitted to a differently constituted First-tier Tribunal for re-determination. The next tribunal should make fresh findings of fact and cannot, in its reasoning, take into account the findings of fact or conclusions of the tribunal whose decision I have set aside. The undetermined grounds of appeal are just that – undetermined.

The composition of the Tribunal panel that re-determines the appeal must not include any member of the panel whose decision I have set aside.

The Tribunal may find it helpful to make careful findings of fact in relation to issues which may be raised at hearing including the duty to notify of changes of circumstances (as referred to at paragraph 14 above) the information provided to the Respondent regarding this duty, whether there was an official error and if so the period(s) it relates to and whether there was any contribution to this error by the claimant. The FTT should also carefully consider and make findings of fact in regard to whether no relevant person could reasonably have been expected to realise that there was an overpayment either at the time it was made or when they were notified of the payment.

The First-tier Tribunal is to hold an oral hearing of the remitted appeal unless the Respondent makes a written request to the First-tier Tribunal for the matter to be decided on the papers without a hearing. Such a request and any representations are to be received by that Tribunal within one month of the date on which this decision is issued. Thereafter, the Tribunal would have to decide whether to proceed without a hearing or if there is to be a hearing, the form of any hearing (whether in-person or remotely by video or telephone), after considering the parties’ representations or preferences and in accordance with the FTT procedural rules

If the Appellant wishes to rely on any further written evidence or argument, it is to be supplied to the First-tier Tribunal so that it is received by that Tribunal within one month of the date on which this decision is issued.