[2023] UKUT 193 (AAC)

The claimant’s appeal came before the Tribunal sitting at Bexleyheath on 10 October 2018. The claimant attended that hearing and Gravesham was represented by two presenting officers.

The Tribunal refused the appeal, confirmed Gravesham’s decisions, and stated that the student loan available to the claimant, and the student bursary he received, fell to be taken into account when calculating his housing benefit entitlement.

The decision referred to the student bursary because the claimant had argued that it should be disregarded. The Tribunal rejected those submissions. In my judgment it was correct to do so, and the claimant’s submissions have not been renewed before the Upper Tribunal.

The Tribunal decided that the notional student loan had to be taken into account because it was bound by the decision in CH/4492/2006. That was also correct, even though, for the reasons I give below, I consider that CH/4492/2006 was wrongly decided.

I may be mistaken but from the papers that were before the Tribunal, I believe it may have failed to deal with an issue that was before it. Paragraph 9 of the written statement of reasons states:

“Calculations in respect of an earlier period also resulted in him not qualifying for HB …, and resulted in an overpayment, although this was not directly relevant to this appeal, but instead arose because [the claimant] had not notified the council that he had started to receive tax credits.”

I am puzzled why, on the view of the law it took, Gravesham did not also bring the claimant’s notional student loan, and any bursary, into account for the 2016/17 academic year as well. However, no such decision appears to have been made. (Footnote: ⁵) At least in respect of the period before 4 September 2017, therefore, the Tribunal was correct to say that any overpayment arose from the claimant’s tax credits and was thus not relevant to what it had to decide.

However, the 2017/18 bursary and notional student loan were brought into account with effect from 4 September 2017 (see paragraph 31 above), at a time when benefit had already been paid to 3 December 2017. It therefore seems to me that, although part of the overpayment for the period between those two dates was caused by the tax credits, it was also partially caused by the student finance issues and that the Tribunal needed to deal with the overpayment issues for that period.

The previous two paragraphs are couched in the cautious language of possibility and belief, because Gravesham’s response was inadequate almost to the point of being useless and—in breach of rule 24(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008—did not include relevant documents that would have enabled the either the Tribunal or me to establish the effective dates of its decisions with certainty.

This decision turns on matters of principle and I will therefore not digress again to elaborate in detail. Suffice it to say that the narrative part of the response should have said in terms that under the decision as revised, the effective date of the claimant’s exclusion from housing benefit was 4 September (or whenever it actually was), and that such exclusion had in part caused an overpayment from that date until 3 December.

In those circumstances, even if I had agreed with Gravesham and the Secretary of State on the main issue before the Upper Tribunal, I would have set aside its decision and remitted any issues arising from the overpayment to the same judge. I mention this because, should my decision be reversed on appeal, those overpayment issues may once again require consideration.