[2025] UKUT 125 (AAC)

As the FTT correctly noted, and is not disputed, the (fifth) decision as to whether, and from whom, to recover the recoverable overpayment is not an appealable decision: see, if needed, the Tribunal of Commissioner’s decision in R(H) 6/06 at paragraphs [33]-35].

More importantly for the purposes of this appeal, the FTT noted, and again this is not disputed (as Mr Irvine made clear to us), the landlord’s appeal to the FTT related only to decision (iv) in Ealing’s decision(s) of 31 July 2021. As to that appealed decision, the FTT’s decision of 30 November 2023 was in the following terms:

“The decision of the London Borough of Ealing (“Ealing”) dated 31 July 2021 (as revised on 16 November 2021) that Capital Housing Association Ltd…is a person from whom the overpayments totalling £37,805.89 may be sought is confirmed.”

In its decision notice the FTT set out that the only issue raised by the landlord on its appeal was whether it was “a person from whom recovery of the overpayments may be sought”. It is plain that by this the landlord meant, and the FTT understood it as meaning, whether the landlord came within regulation 101(2) of the HB Regs. The important effect of this argument, if correct, was (and is) that the overpayment was only recoverable under regulation 101(2) from the tenant. As will be seen, that is the sole determinative issue on this appeal, as it was before the FTT. It was no part of the landlord’s appeal before the FTT that it met all the conditions in regulation 101(1) of the HB Regs so as to mean the overpayment was not recoverable from it. (Indeed, regulation 101(1)(bb) would fatally undermine any such argument on the facts of this case.)

The FTT noted, correctly, that the fact that the tenant had ceased to occupy the flat was a change of circumstances which both the tenant and the landlord were required to notify to Ealing under regulation 88(1) of the HB Regs.

As we have set out above, the means by which changes of circumstance notifications can be made to a housing benefit authority are governed by regulations 88(1) and 88A(1) and Schedule 11 in the HB Regs. These involve giving the designated office notice, firstly, in writing, or, secondly, by telephone where the housing benefit authority has published a telephone number for that purpose or in any case or class of case where that authority decides that notice may be given by telephone, or, thirdly, by any other means which the housing benefit authority accepts in any particular case. Fourthly, under regulation 88A(1) notice of a change of circumstances may be made by electronic communication in accordance with Schedule 11 to the HB Regs. The key relevant feature of Schedule 11 is that it allows the notification of a change of circumstances by electronic means (e.g., by email) only if the Chief Executive of the relevant (housing benefit) authority has permitted it do so by “an authorisation given by means of a direction of [that] Chief Executive”: per paragraph 2(3) of Schedule 11.

In addressing whether Ealing had been notified that the tenant had ceased to occupy the flat as her home, the FTT found that the tenant had done so when she telephoned Ealing on 7 December 2018. It also found that that telephone call fell within regulation 88(1)(b)(i) of the HB Regs. This was because the tenant by that telephone call had told Ealing she had moved out of the London Borough of Ealing and that was one type of change of circumstance that Ealing allowed to be reported to it by telephone.

The FTT went on to agree with Ealing that the payments of housing benefit made after 7 December 2018 were overpayments of benefit (because the tenant was no longer occupying the flat as her home and so ceased to be entitled to housing benefit for the flat). The FTT also agreed with Ealing that those post 7 December 2018 overpayments arose as a consequence of official error under regulation 100(3) of the HB Regs. That ‘official error’ was Ealing’s failure to act on the information provided to it by the tenant on 7 December 2018. This part of Ealing’s decision was not under appeal to the FTT.

Having arrived at this stage in the decision making process, the FTT concluded that the landlord was “the only person who, on the date of each of the overpayments made after 07/12/2018, could reasonably have been expected to realise that the payments which were being received were overpayments”. The FTT understood the landlord not to dispute this. But even if the landlord had disputed this point, the FTT said it would have decided “this point against [the landlord] given it had access to Ealing’s payment schedules and for all the reasons set out in section 7 of Ealing’s appeal response”.

The FTT concluded that as a result “the overpayments made after 07/12/2018 are recoverable from [the landlord] only”. We observe at this stage that, on the face of it, this is a different result from the (fourth) decision of Ealing that was under appeal and against which the FTT had refused the landlord’s appeal.

The FTT then addressed an issue it considered was not necessary to its decision. This was whether there had been a failure to disclose by the landlord. On this issue the FTT decided on the evidence before it that the landlord was required to notify “Ealing’s Housing Benefit Service”, as opposed to any other part of Ealing Council, of any changes to its tenants’ circumstances. The FTT had regard to Ealing’s webpage, through which Ealing’s landlord portal was accessed at the relevant time. That webpage was headed “Information for landlords”. It included a section headed “Your duties, responsibilities and rights” in which landlords were instructed “You must notify us in writing of any change in your tenant’s circumstances”. Underneath this there was a link labelled “Tell us now” which led to a MyAccount sign-in page, and on the right of that page there was a box with the text “Benefits service….Ealing….”.

On the basis of the above and other evidence, the FTT reached the following conclusions:

From this the FTT reasoned and found as follows: