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The statutory scheme
The statutory scheme
The primary source of entitlement to housing benefit is found in section 130(1) of the Social Security Contributions and Benefits Act 1992, which provides relevantly as follows:
“Housing benefit.
(1) A person is entitled to housing benefit if—
he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home…..”
Section 5 of the Social Security Administration Act 1992 authorises the making of regulations concerning claims for and payments of housing benefit. It provides of relevance to this appeal the following:
“Regulations about claims for and payments of benefit
5. (1) Regulations may provide-
(j) for notice to be given of any change of circumstances affecting the continuance of entitlement to such a benefit or payment of such a benefit or of any other change of circumstance of a prescribed description…”
Section 75 of the Social Security Administration Act 1992 deals with housing benefit overpayments. It provides for the following, insofar as is relevant to this appeal:
“Overpayments of housing benefit
75. (1) Except where regulations otherwise provide, any amount of housing benefit determined in accordance with regulations to have been paid in excess of entitlement may be recovered either by the Secretary of State or by the authority which paid the benefit.
(2) Regulations may require such an authority to recover such an amount in such circumstances as may be prescribed.
(3) An amount recoverable under this section shall be recoverable—
(a) except in such circumstances as may be prescribed, from the person to whom it was paid; and
(b) where regulations so provide, from such other person (as well as, or instead of, the person to whom it was paid) as may be prescribed.”
The last provision in a statute to which we need to refer is paragraph 6(6) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000, which sets out the following in relation to housing benefit:
“Appeal to First-tier Tribunal
6. (6) Where any amount of housing benefit…..is determined to be recoverable under or by virtue of section 75…of the Administration Act…, any person from whom it has been determined that it is so recoverable shall have a right of appeal to the First-tier Tribunal.”
The detail about entitlement to housing benefit, notification of changes of circumstances and overpayments of that benefit is found in the HB Regs. The relevant parts of the HB Regs are as follows:
“Duty to notify changes of circumstances
88.—(1)…..if at any time between the making of a claim and a decision being made on it, or during the award of housing benefit, there is a change of circumstances which the claimant, or any person by whom or on whose behalf sums payable by way of housing benefit are receivable, might reasonably be expected to know might affect the claimant's right to, the amount of or the receipt of housing benefit, that person shall be under a duty to notify that change of circumstances by giving notice... to the designated office—
in writing; or
by telephone—
where the relevant authority has published a telephone number for that purpose or for the purposes of regulation 83 (time and manner in which claims are to be made) unless the authority determines that in any particular case or class of case notification may not be given by telephone; or
in any case or class of case where the relevant authority determines that notice may be given by telephone; or
by any other means which the relevant authority agrees to accept in any particular case.
Notice of changes of circumstances given electronically
88A. (1) A person may give notice of a change of circumstances required to be notified under regulation 88 by means of an electronic communication in accordance with Schedule 11.
Meaning of overpayment
In this Part, “overpayment” means any amount which has been paid by way of housing benefit and to which there was no entitlement under these Regulations (whether on the initial decision or as subsequently revised or superseded or further revised or superseded) and includes any amount paid on account under regulation 93 (payment on account of a rent allowance) which is in excess of the entitlement to housing benefit as subsequently decided.
Recoverable overpayments
100.(1) Any overpayment, except one to which paragraph (2) applies, shall be recoverable.
Subject to paragraph (4) this paragraph applies to an overpayment which arose in consequence of an official error where the claimant or a person acting on his behalf or any other person to whom the payment is made could not, at the time of receipt of the payment or of any notice relating to that payment, reasonably have been expected to realise that it was an overpayment.
In paragraph (2), “overpayment which arose in consequence of an official error” means an overpayment caused by a mistake made whether in the form of an act or omission by—
the relevant authority;
an officer or person acting for that authority;
an officer of—
the Department for Work and Pensions; or
Revenue and Customs,
acting as such; or
a person providing services to the Department for Work and Pensions or to the Commissioners for Her Majesty's Revenue and Customs, where the claimant, a person acting on his behalf or any other person to whom the payment is made, did not cause or materially contribute to that mistake, act or omission….
Person from whom recovery may be sought
(1) For the purposes of section 75(3)(a) of the Administration Act (prescribed circumstances in which an amount recoverable shall not be recovered from the person to whom it was paid), the prescribed circumstance is—
housing benefit has been paid in accordance with regulation 95 (circumstances in which payment is to be made to the landlord) or regulation 96 (circumstances in which payment may be made to a landlord);
the landlord has notified the relevant authority or the Secretary of State in writing that he suspects that there has been an overpayment;
(bb) the relevant authority is satisfied that the overpayment did not occur as a result of any change of dwelling occupied by the claimant as his home;
it appears to the relevant authority that, on the assumption that there has been an overpayment—
there are grounds for instituting proceedings against any person for an offence under section 111A or 112(1) of the Administration Act (dishonest or false representations for obtaining benefit); or
there has been a deliberate failure to report a relevant change of circumstances contrary to the requirement of regulation 88 (duty to notify a change of circumstances) and the overpayment occurred as a result of that deliberate failure; and
the relevant authority is satisfied that the landlord—
has not colluded with the claimant so as to cause the overpayment;
has not acted, or neglected to act, in such a way so as to contribute to the period, or the amount, of the overpayment.
For the purposes of section 75(3)(b) of the Administration Act (recovery from such other person, as well as or instead of the person to whom the overpayment was made), where recovery of an overpayment is sought by a relevant authority—
subject to paragraph (1) and where sub-paragraph (b) or (c) does not apply, the overpayment is recoverable from the claimant as well as the person to whom the payment was made, if different;
in a case where an overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact (in either case, whether fraudulently or otherwise) by or on behalf of the claimant, or by or on behalf of any person to whom the payment was made, the overpayment is only recoverable from any person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made; or
in a case where an overpayment arose in consequence of an official error where the claimant, or a person acting on the claimant’s behalf, or any person to whom the payment was paid, or any person acting on their behalf, could reasonably have been expected, at the time of receipt of the payment or of any notice relating to that payment, to realise that it was an overpayment, the overpayment is only recoverable from any such person instead of, if different, the person to whom the payment was made…..
(3A) For the purposes of paragraph (2)(c), “overpayment arose in consequence of an official error” shall have the same meaning as in regulation 100(3) above.
SCHEDULE 11
Electronic Communication
PART 2
Electronic Communication – General Provisions
2(2) A person other than the relevant authority may use an electronic communication in connection with the matters referred to in sub-paragraph (1) if the conditions specified in sub-paragraphs (3) to (6) are satisfied.
The first condition is that the person is for the time being permitted to use an electronic communication by an authorisation given by means of a direction of the Chief Executive of the relevant authority.
The second condition is that the person uses an approved method of—
authenticating the identity of the sender of the communication;
electronic communication;
authenticating any claim or notice delivered by means of an electronic communication; and
subject to sub-paragraph (7), submitting to the relevant authority any claim, certificate, notice, information or evidence.
The third condition is that any claim, certificate, notice, information or evidence sent by means of an electronic communication is in a form approved for the purposes of this Schedule.
The fourth condition is that the person maintains such records in written or electronic form as may be specified in a direction given by the Chief Executive of the relevant authority.
Where the person uses any method other than the method approved of submitting any claim, certificate, notice, information or evidence, that claim, certificate, notice, information or evidence shall be treated as not