Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 39 (AAC)

Fecha: 02-Nov-2021

The Proceedings before the Upper Tribunal

The Proceedings before the Upper Tribunal

The Appellant local authority applied for permission to appeal against the FTTs decision. On 2nd November 2021 the First-tier Tribunal Judge granted permission to appeal on the basis there was an arguable point of law involved relating to whether universal credit (UC) claimants could rely on Housing Benefit Regulations when DWP fails to notify the Housing Benefit Authority the claimant has started to work. The specific Housing Benefit regulation(s) are not identified. The grant of permission also referred to “several other issues, which may have sufficient merit to warrant leave to appeal, but as the matter will be before the Upper Tribunal, they may be considered “. Regrettably, the FTT Judge does not elaborate. It would be helpful when permission to appeal is being given at the FTT if the specific issues and regulations in question are identified, rather than simply referred to in general terms. If there are other issues which the FTT considers the Upper Tribunal might usefully consider, it would be apposite to clearly set those out when granting permission to appeal. This avoids the need for the Upper Tribunal to engage in Delphian deliberations.

Judge Jones gave case management directions allowing the Respondent to supply a written response to the appeal and suggesting an oral hearing would be appropriate given the complexity of the issues involved.

The appeal was transferred from Judge Jones to me. I held an oral hearing of the appeal at Field House on 31^st May 2023. This was attended by both parties who were legally represented.

Counsel for the Appellant submitted at oral hearing that the FTT’s decision involved an error of law on a number of grounds. He noted that CA was in the unusual “loophole” situation of receiving both universal credit (UC) and housing benefit (HB) being in temporary accommodation and it was not self-evident there was a duty to disclose on UC. In summary he argued that the FTT made the following errors of law:

(i)

The FTT failed to identify where the duty on UC to notify the local authority of a change of circumstances comes from.

(ii)

It was incorrect to find there was official error in relation to the entire period.

(iii)

there was a failure to fully consider whether CA had contributed to the error. Counsel also argued Regulation 88 of the Housing Benefit Regulations 2006 contained no reference to a one-month time limit and any relevant change should be notified as soon as it happens.

(iv)

The case law demonstrates that if a claimant has not complied with their own duty to disclose, they are not able to assert official error on the part of the local authority as per R(Sier) v Cambridge CC HBRB [2001] EWHC Admin 160.

(v)

There was no official error from 5^th March 2020 as it was unreasonable to expect the local authority to act instantly on a disclosure particularly in the context of a pandemic. In their written submission the Appellant local authority submits no official error has occurred during the period 2/03/2020 (presumably meaning 2/2/20) to 8/03/2020 because the payment was made prior to the Appellant’s notification on 5/03/2020. The Respondent does not believe that the FTT has given this point any consideration.

(vi)

The Appellant also contends the FTT has failed to address the issue regarding notifications of changes in circumstances. It has referred to the singular “change” throughout the statement of reasons. The authority was clear in part 7, paragraph 15 of its submissions, that the claimant’s earnings changed no fewer than 10 times during the period of the overpayment (24/01/2020 to 30/03/2021), changes which ought to have been individually notified to the local authority. It is argued that the FTT formed the view that only the first notification was relevant. The Appellant submits the FTT was required to make a clear finding of fact in respect of each payment or change to enable it to determine whether the overpayment caused by the claimant first finding work and then receiving an increase in income, were the results of official error.

10.

The representative for CA submitted;

(i)

It was reasonable to expect a local authority to act on a disclosure immediately.

(ii)

UC were under a duty to inform the local authority of the change of circumstances and Sier could be distinguished.

(iii)

It was not reasonable to expect CA to know an overpayment had been made at that time. This is a subjective test.

(iv)

The Local Authority made an official error in not suspending HB payments.

(v)

Extended payments should run on in these circumstances otherwise this would be an anomalous situation vis a vis other benefits.

(vi)

Tribunals have been willing to look at claimants’ circumstances in the round when considering official error.

11.

At the suggestion of the parties, I issued further case management directions on 2^nd June 2023 requesting submissions clarifying when the Respondent’s award actually came to an end and whether Universal Credit is a qualifying income-based benefit for the purposes of Regulation 2 of the Housing Benefit Regulations 2006.The parties were requested to indicate the implications of this as regards the issues in this appeal. Further submissions from both parties have been received and I thank both representatives for their helpful oral and written arguments.