[2024] UKUT 222 (AAC)

Which decision was being appealed?

Barnet’s 23 March 2021 entitlement decision involved the following:

Barnet phrased its decision letter dated 17 February 2022 as only dealing with the 23 March 2021 overpayment decision. However, it appears the 17 February 2022 decision revised both of the decisions it made on 23 March 2021.

The 17 February 2022 decision partially revised the 23 March 2021 entitlement decision in terms of ZA’s past housing benefit entitlement from 03 April 2017 to 21 March 2021, indicated by the wording: “There were no grounds to revise the decision from 03/04/17”. The effect was that ZA remained entitled to housing benefit between 03 April 2017 and 21 March 2021. An alternative analysis is that Barnet maintained its position ZA had no entitlement to housing benefit between 03 April 2017 and 21 March 2021 due to her capital (and therefore did not revise the entitlement decision), but decided the overpayment was not recoverable for failing to ask ZA the right questions.

Whichever analysis applied, it is clear that on 17 February 2022, Barnet revised the 23 March 2021 overpayment decision by deciding no overpayment was recoverable from ZA.

However, there were two parts to the 23 March 2021 entitlement decision; one part dealing with past entitlement and the other dealing with ongoing entitlement. Irrespective of whether it actually changed the past entitlement element of that decision, the 17 February 2022 decision did not change the ongoing entitlement element of the 23 March 2021 entitlement decision.

ZA challenged Barnet’s continuing position that she was not entitled to housing benefit from 22 March 2021 onwards. Her appeal was therefore against the 23 March 2021 entitlement decision. This is the situation even if that decision had been revised. See paragraph 3(3) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. It confirms that regarding time limits for appealing against a revised decision, the underlying decision is treated as made on the date it was revised.

In its Response to the appeal, Barnet described the decision dated 17 February 2022 as superseding the 23 March 2021 entitlement decision under regulations 7 and 8 of the 2001 regulations. This referred to changing ZA’s ongoing entitlement to housing benefit. However, for the reasons set out above, in terms of ongoing entitlement, the decision dated 17 February 2022 maintained, rather than changed, the 23 March 2021 entitlement decision. Barnet confirmed this was the position in page 2 of its response received on 14 June 2024 (“latest response”).

The tribunal’s decision notice stated incorrectly that it was confirming Barnet’s decision dated 17 February 2022. At paragraph 3, the tribunal adopted Barnet’s reasoning that the 17 February 2022 decision superseded ZA’s entitlement under regulations 7 and 8 of the 2001 regulations. At paragraph 4 of the Statement of Reasons, the tribunal referred to the 17 February 2022 decision deciding ZA was not entitled to housing benefit from 21 March 2021 onwards. While the date used (21 March 2021) is likely a typographical error, the tribunal decided incorrectly that the 17 February 2022 decision changed ZA’s ongoing benefit entitlement.

The tribunal therefore materially misdirected itself in law, by incorrectly identifying the decision-making process Barnet applied and which decision was under appeal.