[2025] UKUT 125 (AAC)

Through Mr Irvine, the landlord’s argument before us consisted of two broad points.

The first point was that the overpayment was not an official error overpayment because it had been caused by the tenant’s failure to notify Ealing that she had moved out of the flat. In relation to this, Mr Irvine argued that Ealing had originally accepted that the tenant had failed to report this change to it. He also argued that the sole requirement on the tenant was provided for in Ealing’s notification letters, that was limited to reporting change of circumstances in writing or by the MyAccount facility, and the tenant had done neither of these. Notification by telephone, moreover, was not open to the tenant. This was for four inter-related reasons: (i) that was not an option for which provision had been made in Ealing’s notices, (ii) Ealing had not relied on this as a possibility at earlier stages of its decision-making, (iii) the policy allowing for notification by telephone in certain defined circumstances had not been raised by Ealing until the final hearing before the FTT, and (iv) Ealing ought to have been bound legally only by the types of notifications it accepted in its notification letters.

The second point argued by Mr Irvine was that the landlord’s telephone and email notifications of the tenant having vacated the flat were sufficient. No concerns had been raised by Ealing in the past about the landlord using email as a permissible form of notification of changes. Ealing had also accepted notification in the past by telephone from the landlord.

Neither of these arguments assist the landlord. Firstly, they are no more than evidential reargument. It was for the FTT to hear and consider these evidential points, as it did. Absent an error of law, which neither of these points show, it is not for the Upper Tribunal on appeal (as Mr Irvine wrongly thought) to redecide these evidential issues on their merits. On the evidence before it and for the reasons it gave, the FTT was entitled to make the findings and arrive at the conclusions which it did.

Second, the FTT’s role was not to review, akin to a judicial review, whether Ealing had lawfully arrived at its decision. Nor was it required to hold that Ealing was bound by any earlier views or decisions Ealing may have taken. The FTT’s role was to stand in the shoes of Ealing and make afresh, and from an independent perspective, the decision or decisions which ought to have been made at the time of Ealing’s decisions: see paragraph [19] of the Tribunal of Commissioners’ decision in R(IB)2/04 and the case law cited therein.

This appeal could stop and be dismissed at this point as none of the landlord’s arguments show any error of law in the FTT’s decision. The FTT’s decision involved a careful consideration of all the relevant evidence and made findings of fact to which the FTT was entitled to come on all the evidence before it; findings which were rationally and properly based on the evidence it heard from the tenant, the landlord and Ealing. Those findings included, in particular, what was said in the telephone call the tenant made to Ealing on 7 December 2018 and whether that telephone call was a form of telephone notification which Ealing had permitted under regulation 88(1)(b)(i) of the HB Regs. And as the FTT found, these findings were fatal to the landlord’s appeal succeeding.

We will, however, extend our consideration of the appeal a little further, first, to explain why, even if the FTT was wrong about the validity of the landlord’s notifications, it would not affect the result, and, second, because in our judgement the FTT made an (immaterial) error in its application of regulation 101(2) of the HB Regs to the facts as it found them. We do so with a degree of reservation because we did not receive any detailed or contested argument on the correct construction of regulation 101(2) of the HB Regs.

On the first point, and ignoring the fact that even if they were valid the landlord‘s email and telephone notifications to Ealing were only made on 27 May 2020 and 29 July 2021 respectively, Mr Irvine (rightly) accepted before us that it was not sufficient for the landlord to establish before the FTT that it had validly notified Ealing that the tenant had ceased to occupy the flat. The landlord also had to show that the tenant had not properly notified Ealing in December 2018 that she had left the flat and ceased top occupy it as her home. There are two, related, reasons why the landlord had to show that the tenant had not properly notified Ealing.

First, because if the tenant had properly notified Ealing in early December 2018 that she had vacated the flat, it was common ground before us that the payments of housing benefit which continued to be made by Ealing to the landlord after this date were recoverable as ‘official error’ overpayments under regulation 100 of the HB Regs. This is because, per regulation 100(2) of the HB Regs, the landlord could reasonably have been expected to realise that it was being overpaid housing benefit when it continued to receive those payments from December 2018 onwards in respect of the tenant’s occupation of the flat. The landlord knew, as the FTT found (but which in any event was not under appeal to the FTT), in December 2018 that the tenant had moved out and was no longer occupying the flat as her home.

The second, and crucial, reason is that if the payments of housing benefit from December 2018 onwards were recoverable ‘official error’ overpayments, regulation 101(2)(b) of the HB Regs did not apply and the landlord was a person from whom the recoverable overpayment could be sought either under regulation 101(2)(a) (along with the tenant, as Ealing had decided) or under regulation 101(2)(c) (as the FTT decided). Putting this another way and using the language of regulation 101(2)(b) of the HB Regs, the landlord had to establish that the overpayment arose in consequence of a failure to disclose by the tenant, and not in consequence of any failure to disclose by the landlord, so as to make the overpayment “only recoverable from [the] person who…failed to disclose the material fact instead of, if different, the person to whom the payment was made”.

However, the FTT’s findings and conclusions about the tenant having properly notified Ealing in December 2018 that she had moved out of the flat are, in our judgement, unimpeachable. Moreover, it is not disputed that a notification under regulation 88(1) of the HB Regs amounted to ‘disclosure’ for the purposes of regulation 101(2)(b) (per B v SSWP [2005] EWCA Civ 929; [2005] 1 WLR 3767). In these circumstances, there is no basis for the tenant being caught by regulation 101(2)(b) as a person instead of the person (the landlord) to whom the (over)payments of housing benefit were made. It follows from this that it does not matter whether the landlord was able to establish before the FTT that it made valid notifications by telephone or email to Ealing. Regulation 101(2)(b) cannot remove the liability on a landlord who has received the overpayments of housing benefit simply where the landlord has properly disclosed all relevant information, in time to the housing benefit authority. This is because regulation 101(2)(b)’s target is a person “instead of” the person to whom the payments of housing benefit were made, but only if those are different persons, and where the first person in this sentence has failed to disclose or misrepresented a material fact. Regulation 101(2)(b) thus has no application where the person who has failed to disclose is the same person to whom the overpayments of housing benefit were made.

Where regulation 101(2)(b) does not apply (as the FTT was plainly entitled to find in respect of the tenant in this appeal), the default position under regulation 101(2) is that regulation 101(2)(a) applies, unless regulation 101(2)(c) is applicable. If regulation 101(2)(a) applies, the overpayment is recoverable from the claimant and the person to whom the overpayments of housing benefit were made, if that person is a different person from the tenant.

It is because the FTT was entitled to find that regulation 101(2)(b) did not apply to the tenant, that we do not need to address any of the potentially difficult arguments concerning the legal scope and effect of regulations 88 and 88A of the HB Regs in respect of the information the landlord may have provided to Ealing by email and telephone. Resolving any of those issues is simply not necessary for the proper disposal of this appeal. Even if the landlord had made good disclosure of all relevant information to Ealing, and in time, this would not change the legal effect of the tenant having made good disclosure to Ealing, and with the latter the landlord’s attempt to rely on regulation 101(2)(b) of the HB Regs to make only the tenant liable must fail.

We turn lastly to the FTT founding its decision on regulation 101(2)(c) of the HB Regs so as to make only the landlord liable to repay the recoverable overpayment. We consider that the FTT was wrong to do so. Regulation 101(2)(c) does not apply so as to oust the default position in regulation 101(2)(a) in all cases simply because the overpayment arose in consequence of an official error. That is a necessary but not a sufficient condition for regulation 101(2)(c) to apply. All the terms of regulation 101(2)(c) must be satisfied in order for sub-paragraph (c) of regulation 101(2) to apply and so oust regulation 101(2)(a) from applying. However, in our judgement, all of the terms of regulation 101(2)(c) did not apply on the facts of this appeal. True it is that the overpayment arose in consequence of an official error and that the landlord could reasonably have been expected to realise it was receiving overpayments from December 2018 onwards. However, the closing words of regulation 101(2)(c) must also be satisfied for it to apply. Those words remove the default position in regulation 101(2)(a) so as to make the overpayment only recoverable from the person who could reasonably have been expected to realise that it was an overpayment of benefit (here, the landlord) if that person is a person “instead of, if different, [from] the person to whom the payment was made”. That does not apply here because the person who could reasonably have been expected to realise that it was an overpayment is the same person as the person to whom the (over)payment was made. Regulation 101(2)(c) only applies if the person who could reasonably have been expected to realise that it was an overpayment is a different person to the person to whom the payment was made.

The FTT was correct to dismiss the landlord’s appeal from Ealing’s decision that the overpayment was recoverable from both the tenant and the landlord. Its reasoning about regulation 101(2)(c) applying did not marry up with its decision, but there is no need to set aside the FTT’s decision on this basis. That decision upheld Ealing’s decision and was correct.

Standing back, finally, and looking at the above result under regulation 101(2), and more particularly the landlord having joint liability under that regulation in respect of the overpayment, in legal policy terms we find nothing odd or jarring with that result. It must be remembered that the landlord continued to be paid housing benefit, in respect of someone who it knew was no longer its tenant, which it ought not to have been paid. If that can properly be described as a ‘windfall’, there was and is nothing unfair in the landlord being liable to repay sums of money which it should not have received.

For all the reasons we have given, this appeal must be dismissed.