AF-v-Department for Social Development (HB) [2011] NICom 243
Decision No:  C1/11-12(HB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

HOUSING BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 9 December 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 9 December 2009 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by section 59 and paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I set aside the decision appealed against.  Pursuant to the powers conferred on me by section 59 and paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I give the decision which I consider the appeal tribunal should have given.  That decision is that the appeal against the decision of the Northern Ireland Housing Executive (NIHE) dated 6 August 2008 is allowed.

2.	Section 129(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

‘129.—(1) A person is entitled to housing benefit if—

(a)  he is liable to make payments in respect of a dwelling in Northern Ireland which he occupies as his home;

There are, of course, other conditions of entitlement to housing benefit (HB).

3.	On 13 December 2007, a decision-maker in the NIHE decided that the claimant did not have an entitlement to HB as he had no liability to make payments in respect of the dwelling in which he occupied as his home.  This was because he had a legal right of residence in that property established by way of agreement between the claimant and his son when the claimant sold the property to his son.  The decision dated 13 December 2007 was revised by another Decision-Maker on 26 October 2007.

4.	I accept and adopt the findings and conclusions of the appeal tribunal with respect to the issue of entitlement.  The claimant did not have a formal right of residence in the property in respect of which the claim to HB was made.  Accordingly, pursuant to the tenanacy agrement which he entered into with the appellant he was liable to make payments in respect of the dwelling which he occupied as his home.  A copy of the relevant tenancy agreement is included in the original appeal submission as Tab No 19.  The copy of the tenancy agreement included in the papers is of poor quality. It is not clear, for example, whether it was signed by or on behalf of the appellant.  I am certain, however, that a clear liability in respect of payments rent was established on the part of the appellant.

5.	Accordingly if there was a liability to make payments in respect of the dwelling which he occupied as his home, then the provisions of section 129(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, are satisfied.  The NIHE awarded entitlement on the basis that the provisions of section 129(1)(a) were satisfied.  It purported to remove entitlement on the basis that they were not.  It submitted that the original entitlement decision was based on ignorance of a material fact, namely that the claimant had a right to reside in the relevant property and, accordingly, had no liability to pay rent.  That decision was wrong for the reasons which are set out below.  As I have established, therefore, that there was an entitlement to HB and that entitlement could not be removed on the ground submitted by the NIHE, there was no overpayment of HB.

	Background

6.	This case has a complex background which requires to be considered in some detail.  In this decision I will refer to the original claimant to HB as the claimant.  Regretfully the claimant is now deceased.  The appellant in this decision was the claimant’s landlord.

7.	The claimant claimed and was awarded an entitlement to HB from and including 21 July 2003.  The decision making the entitlement award was made on 28 August 2003.  On 19 October 2007 the claimant made contact with the local office of the NIHE and provided certain information in connection with the property in relation to which he was awarded entitlement to HB.  On 26 October 2007 the original decision awarding entitlement to HB was revised.  The decision as revised was that the claimant was not entitled to HB.  The legal and evidential basis for the revision decision dated 26 October 2007, the entitlement decision, will be explored in more detail below.  Also on 26 October 2007 another decision-maker decided that an overpayment of HB, for the period from 21 July 2003 to 14 October 2007 amounting to £18075.20 had occurred and which was recoverable from the claimant.  The overpayment decision dated 26 October 2007 was notified to the claimant on 29 October 2007.

8.	On 13 December 2007 the entitlement decision dated 26 October 2007 was revised.  The basis of the revision was that the original entitlement decision had not taken into account entitlement to the rates component of HB.  The revision decision dated 13 December 2007 rectified that error and determined that the claimant had an entitlement to the rates component of HB for the relevant period.  The revision of the entitlement decision necessitated a revision to the overpayment decision.  Accordingly, and also on 13 December 2007, the overpayment decision was revised so that the decision-maker decided that an overpayment of HB, for the period from 21 July 2003 to 14 October 2007, amounting to £15605.50 had occurred and which remained recoverable from the claimant.  The claimant was notified of the revised overpayment decision on 2 January 2008.

9.	There then began the decision-making process which gave rise to the appeal which is before the Social Security Commissioners.  On 6 August 2008 another decision- maker made a decision that the overpayment of HB for the period from 21 July 2003 to 14 October 2007, amounting to £15605.50 which had occurred was also recoverable from the appellant.  The decision dated 6 August 2008 was notified to the appellant on 6 August 2008.  On 26 August 2008 the appellant sought a written statement of reasons for the decision dated 6 August 2008.  On 3 September 2008 the written statement of reasons was forwarded to the appellant.  On 2 October 2008 a letter of appeal against the decision dated 6 August 2008 was received in the NIHE.  There then followed an exchange of correspondence between the appellant and the NIHE which culminated on the appellant’s appeal being forwarded to the Appeals Service (TAS) on 9 March 2009.

10.	An appeal tribunal hearing took place on 9 October 2009.  The appellant was not present due to ill-health but was represented.  The NIHE was also represented.  The appeal was adjourned by the legally qualified panel member (LQPM) In deciding to adjourn the LQPM took into consideration the fact that the appellant had been unable to attend but, more significantly, wished the NIHE to consider additional issues relating to the claimant’s former ownership of the property in respect of which HB had been paid and the disposal of capital arising from the disposal of that property.

11.	In consequence of the adjournment of the appeal tribunal hearing, a further written submission was prepared by Ms Murray, of the Department for Social Development on behalf of the NIHE.  The substantive oral hearing of the appeal took place on 9 December 2009.  The appellant was not present, having indicated that ill-health would, once again, prevent her from attending the oral hearing of the appeal.  The appellant was, however, represented, as was the NIHE.  The appeal tribunal had before it a detailed submission and additional documentation prepared by the appellant in response to the further submission from Ms Murray.  The appeal tribunal disallowed the appeal.  The decision notice for its decision reads as follows:

‘Appeal Disallowed.  An overpayment of Housing Benefit amounting to £15605.50 for the period 21/7/03 to 14/10/07 has been made which is recoverable from the appellant and from the original claimant of the benefit (the claimant) deceased.’

12.	The LQPM subsequently provided a statement of reasons for the decision following a request to that effect.  On 4 March 2010 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 12 March 2010 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

13.	On 15 April 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioner.  On 21 June 2010 written observations on the application for leave to appeal were sought from HB Advice.  Initial written observations were received from HB Advice on 20 July 2010.  In these initial written observations, Ms Murray, on behalf of HB Advice, conceded that the decision of the appeal tribunal was in error of law and, in a very helpful submission, set out a number of proposals for taking matters forward.

14.	Written observations were shared with the appellant on 28 July 2010.  A further submission in reply to the written observations was received from the appellant on 20 August 2010, which was shared with Ms Murray on 2 September 2010.  On 20 September 2010 I directed an oral hearing of the application.  The oral hearing of the application took place on 9 December 2010.  At the oral hearing, the appellant was represented by Mr Hatton from the Law Centre (Northern Ireland), and HB Advice was represented by Ms Murray.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

15.	At the oral hearing of the application an issue arose as to certain payments which were submitted to have been made in connection with the disposal of the premises in connection with which the claim to HB had arisen.  Mr Hatton undertook to provide the additional information and a brief submission in connection with that information was subsequently received on 31 January 2011.  This further information was shared with Ms Murray who indicated, on 22 February 2011, that she had no further comments to make.  There then followed a delay in the promulgation of this decision, occasioned, in part, by an indication that certain of the issues which arose in the present case were the subject of consideration by a Social Security Commissioner in another appeal.  In the event, the further appeal was determined without there having to be a detailed analysis of the issues arising in the present appeal.

	Errors of law

16.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

17.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	Why was the decision of the appeal tribunal in the instant case in error of law?

	General legislative background

18.	The scheme for HB was originally provided for in the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, the Social Security Administration (Northern Ireland) Act 1992, as amended, the Housing Benefit (General) Regulations (Northern Ireland) 1987 and the Housing Benefit (State Pension Credit) Regulations (Northern Ireland) 2003.  The 1987 and 2003 Regulations were the subject of such significant amendments that in 2006 a consolidation exercise took place resulting in the passing of the Housing Benefit Regulations (Northern Ireland) 2006 and the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006.  A parallel scheme for HB is in place in Great Britain and a similar consolidation exercise took place in that jurisdiction in 2006.

	What did the appeal tribunal not do?

19.	Section 73(1) to (4) of the Social Security Administration (Northern Ireland) Act 1992 provides that:

’73  (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 by the Department, the Department of the Environment or by the Housing Executive.

(2)  Regulations may require the Department of the Environment or the Housing Executive 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.

(4)  Any amount recoverable under this section may, without prejudice to any other method of recovery, be recovered by deduction from prescribed benefits.’

20.	Regulation 78 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006, as it was in force at the date of the decision under appeal provides that:

‘Recoverable overpayments

78.—(1) Any overpayment, except one to which paragraph (2) applies, shall be recoverable.

(2) 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.

(3) 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—

(a)the relevant authority;

(b)an officer or person acting for that authority;

(c)an officer of—

(i)the Department;

(ii)the Department for Employment and Learning;

(iii)Revenue and Customs,

acting as such; or

(d)  a person providing services to either Department mentioned in sub-paragraph (c) 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.

(4) Where in consequence of an official error, a person has been awarded rent rebate or rate rebate or both to which he was not entitled or which exceeded the benefit to which he was entitled, upon the award being revised or superseded any overpayment of benefit, which remains credited to him by the relevant authority in respect of a period after the date on which the revision or supersession took place, shall be recoverable.’

21.	Regulation 79 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006, as it was in force at the date of the decision under appeal provides that:

‘Person from whom recovery may be sought

79.—(1) For the purposes of section 73(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—

(a) housing benefit has been paid to a landlord in accordance with regulation 73 or 74;

(b) the landlord has notified the Executive or the Department in writing that he suspects that there has been an overpayment;

(c) the Executive is satisfied that the overpayment did not occur as a result of any change of dwelling occupied by the claimant as his home;

(d) it appears to the Executive that, on the assumption that there has been an overpayment—

(i) there are grounds for instituting proceedings against any person for an offence under section 105A(2) or 106(1)(3) of the Administration Act (dishonest or false representations for obtaining benefit), or

(ii) there has been a deliberate failure to report a relevant change of circumstances contrary to the requirement of regulation 65 and the overpayment occurred as a result of that deliberate failure; and

(e) the Executive is satisfied that the landlord—

(i) has not colluded with the claimant so as to cause the overpayment;

(ii) has not acted, or neglected to act, in such a way so as contribute to the period, or the amount, of the overpayment.

(2) For the purposes of section 73(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 the Executive—

(a) the prescribed person from whom it is sought shall be—

(i) 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 any other person to whom housing benefit has been paid, the person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made;

(ii) in a case where an overpayment 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 has been made 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, that person instead of, if different, the person to whom the payment was made; or

(b) where sub-paragraph (a)(i) and (ii) do not apply, the prescribed person from whom it is sought is—

(i) the claimant;

(ii) in a case where a recoverable overpayment is made to a claimant who has one or more partners, the claimant’s partner or any of his partners.

(3) For the purposes of paragraph (1), “landlord” shall have the same meaning as it has for the purposes of regulation 73.

(4) For the purposes of paragraph (2)(a)(ii), “overpayment arose in consequence of an official error” shall have the same meaning as in regulation 78(3).

(5) For the purposes of paragraph (2)(b)(ii), recovery of the overpayment may be by deduction from any housing benefit payable to a partner provided that the claimant and that partner were members of the same household both at the time of the overpayment and when the deduction is made.’

22.	In the additional submission prepared following the adjournment of the first appeal tribunal hearing, Ms Murray submitted that:

‘… It is prudent at this stage to point out that the decision maker is now of the opinion that the overpayment decision should have been that the overpayment was recoverable from both (the appellant) and (the claimant) … The decision maker considered revising the decision again to make it recoverable from both parties however it is not possible to make a recoverability decision on a deceased person’s estate without a grant of representation (see R(IS) 6/01).

…

If the overpayment was not caused by misrepresentation of or a failure to disclose a material fact or was caused by an official error but neither (the claimant) nor (the appellant) could reasonably have been expected to realise that housing benefit was being overpaid then, I submit that it is recoverable from both (the appellant) as the landlord to who benefit was paid in accordance with Section 73(3)(b) of the Administration Act and the claimant in accordance with regulation 79(2)(b)(i) (see Commissioner’s decision R(H) 6/06 paragraphs 56 to 58 …’

23.	In the written submission prepared for the oral hearing of the appeal, Mr Hatton submitted that:

‘1.11	There is however an additional issue in that the Executive, which appears to us to have been based on a mistaken understanding of the law, did not issue a decision to (the claimant) or to a representative of his estate.  This is also partially explained by the Executive accepting that there was no merit in pursuing the overpayment from (the claimant’s) estate as there was no substantial value to the estate.  There was no representative of (the claimant’s) estate involved in these proceedings and it appears to us that the Executive should have issued a decision to the representative of his estate.  In fact, when the original decision was made (the claimant) was still alive and it was only after his death that the Executive decided that both (the claimant) and (the appellant) were liable for the overpayment.  Paragraphs 19 and 20 of the Executive’s addendum submission to the tribunal dated 26 November 2011 explain why no decision was made that (the claimant) was liable for the overpayment.

1.12	We would refer to Commissioner [sic] decision R(H) 6/06 and to paragraphs 59-62 therein.  It is suggested that what should happen in cases where two or more people are found to be liable for the overpayment, then one decision should be issued to all those affected so that in the event the matter is appealed, the tribunal can consider the liability of all those involved.  Paragraph 61 states that failure to do this would mean that the only option available to the tribunal would be to set aside the decision before it and leave it to the local authority to make a new decision against all those potentially liable.  This is because the tribunal will not be entitled to make a decision against both people because the other will not have been a party to the proceedings.  This appears unfortunately to be exactly the case in this matter, in that the tribunal have made decision that (the claimant) is liable despite him (or a representative of his estate) not being a party to the proceedings.

1.13	In light of this, it would appear that the tribunal may have erred in law by making a decision that (the claimant) was liable when he was not a party to the proceedings.  It is likely the tribunal should have directed the Executive to either correct its decision or to re-issue a new decision to both (the appellant) and (the claimant).  The error has originated in the Executive’s failure to issue a decision to (the claimant) and by its submission that a grant of representation was necessary, but the tribunal has continued the error by failing to ascertain the correct factual and legal position.

1.14	It may be that the Executive do not intend in any event to seek recovery from (the claimant) and would not be issuing a decision anyway.  If this is the case, so that the Executive’s decision is that the overpayment is only recoverable from (the appellant), then this may allow the matter to be resolved without having to be remitted and a new decision issued.  This would then be a case of the tribunal having erred in law by finding that (the claimant) was liable when no decision to that effect was issued to him.  The tribunal would have been restricted to only considering (the appellant’s) liability.  In this case, if it is accepted that this was the error of law, then the Commissioner may be able to consider our points below regarding the issue of (the claimant’s) liability and substitute the decision of the tribunal with one of his own …’

24.	In R(H) 6/06 a decision of a Tribunal of Social Security Commissioners in Great Britain were concerned with legislative provisions which are similar to those applying in Northern Ireland, namely section 75 of the Social Security Administration Act 1992, as amended, regulation 101 of the Housing Benefit (General) Regulations 1987 and the substituted regulation 102 of the Housing Benefit Regulations 2006.  Certain of the wording of the latter regulation is similar to regulation 79 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006.

25.	The facts were that the claimant was awarded HB with effect from 22 January 2001.  In early 2003, it came to the attention of the local authority that he had become a full-time student in 2002 and had been awarded a student loan.  The claimant was interviewed and, on 22 April 2003, the local authority superseded the award of HB with effect from 2 September 2002 and decided that he was not entitled to HB from that date.  It also decided that £6,711.15 had been overpaid from 2 September 2002 to 20 April 2003 and that that sum was recoverable from the claimant.  He did not challenge that decision.  On 5 September 2003, he was conditionally discharged for two years by a magistrates’ court and ordered to pay £100 costs, having pleaded guilty to “various benefit fraud” charges related to the decision.  He started to repay the overpaid benefit at the rate of £100 per month.

26.	The claimant’s rent had never been referred to a rent officer because the local authority had been under a misapprehension as to the landlord’s status.  Having discovered this error, the local authority revised or superseded the award of HB from 22 January 2001 to 1 September 2002, deciding that the claimant had been entitled to only £70 per week until 2 December 2001 and to nothing thereafter and that, in consequence, £13,785.98 had been overpaid to the landlord and was recoverable from it.  It appears from later correspondence that the overpayment had arisen due to a misrepresentation by the landlord.  The landlord did not challenge the decision.  Nor did it challenge similar decisions made in respect of other tenants for the period up to 23 June 2003.

27.	However, the claimant, who had been given notice on 5 November 2003 of the decision that the overpayment up to 1 September 2002 was recoverable from the landlord, did react to that decision.  On 24 November 2003, he wrote to the local authority arguing that, to the extent that his HB should have been restricted from 2 September 2002, the overpayment from 2 September 2002 to 20 April 2003 should also be recovered from his landlord and not from him.  He said that, had his eligible rent been limited, he would have sought alternative accommodation and so reduced his liability for rent.  On 19 December 2003, the local authority refused to supersede the decision of 22 April 2003, stating that the whole of the overpayment from 2 September 2002 was attributable to the claimant’s own failure to declare his change of circumstances because, without that failure to disclose a material fact, no HB would have been paid.  After unsuccessfully applying for a revision of that decision, the claimant appealed, and on 8 June 2004, the tribunal dismissed his appeal.

28.	At paragraphs 59 to 61 of their decision, the Tribunal of Commissioners discuss the proper approach to the decision-making process where there is joint liability, as follows:

‘Decisions where there is joint liability

59.	It seems to us that a lot of confusion might have been avoided if, where overpayments were recoverable from more than one person concurrently, local authorities had issued decisions in respect of all those from whom they were recoverable.  Had that been done, the erroneous idea that the legislation provided for overpayments to be recoverable from only one person would not have taken such a hold.  The problem seems to have been caused by local authorities deciding from whom they would recover an overpayment before issuing any decision as to recoverability.  Logically, as we have said, the choice as to against whom to enforce a right of recovery does not arise until it has been decided from whom the overpayment is recoverable.  Making decisions against all of those from whom an overpayment is recoverable is also right in principle.  It is difficult for a local authority to justify not making a decision against any person from whom it is entitled to recover public money.  Equally, any person from whom it is decided that an overpayment is recoverable is entitled to a decision which shows from which other persons the local authority is also entitled to recover the overpayment.

60.	In every case where a recoverable overpayment has been made, the local authority should make a single decision referring to all of those from whom the overpayment is recoverable, rather than separate decisions addressed to each of them.  Moreover, where a local authority decides that an overpayment is not recoverable from the person to whom it was made, a proper decision to that effect should be made and included within the decision as to the person from whom the overpayment is recoverable.  It should then be communicated to the person to whom the overpayment was made and to those from whom it is recoverable.  The advantage of that is that, if there is an appeal, all those potentially affected by the appeal will be parties to the proceedings and neither the local authority nor a tribunal will consider one person’s liability without regard to the liability of others.  As the local authority has to go through the process of identifying those from whom an overpayment is recoverable before taking any action to recover it, we do not consider it will be burdensome to record the decision properly and issue copies to all those concerned.

61.	If, contrary to that suggestion, a local authority issues a decision against only one of, say, two people from whom an overpayment is recoverable, it seems to us that, on an appeal, the appellant will be entitled to a finding that he or she is not the only person from whom the benefit is recoverable.  However, the tribunal will not be entitled to make a decision against both people because the other will not have been a party to the proceedings.  Consequently, the tribunal will be limited to setting aside the decision under appeal and leaving it to the local authority to make another decision against both people.  That is not a unique situation because it is well established that a tribunal has a similar power to set aside a decision without substituting another decision in a case where it finds the decision under appeal to have been made without jurisdiction.  As Mr Kovats and Mr Maurici both observed, there is nothing in the 2000 Act to suggest that a tribunal has no power effectively to remit a case to a local authority where that appears to be more appropriate than substituting its own decision.’

29.	As was noted above, Ms Murray, on the basis of the principles set out in R(H) 6/06, concedes that, post the oral hearing of the appeal, it was the view of the decision- maker that a decision should have been made that the overpayment was recoverable from both the appellant and the claimant.  The decision-maker considered revising the original overpayments decisions to that effect but, having concluded that the NIHE would not have the lawful power to raise an overpayment against the deceased claimant’s estate without a grant of representation, decided that a revision of the overpayment decisions was not appropriate.  In any event, pursual of an overpayment against the deceased claimant’s estate would be futile as there were insufficient residual funds within that estate to satisfy the overpaid amounts.

30.	Mr Hatton, in response, submits that the decision of the appeal tribunal might have been in error of law in offending the principles set out in R(H) 6/06.  The appeal tribunal made a decision that the claimant was liable despite him (or a representative of his estate) not being a party to the proceedings.  What the appeal tribunal should have done should have been to direct the NIHE to either correct its decision (probably through the revision of the overpayment decisions as suggested by Ms Murray) or to re-issue a new decision to both the appellant and the claimant.  Mr Hatton went on to make a suggestion as to how the matter could be taken forward if I was to find the decision of the appeal tribunal to be in error of law on this basis.

31.	I accept and apply the principles set out in R(H) 6/06.  The Tribunal of Commissioners were correct to state that:

•	the choice as to against whom to enforce a right of recovery does not arise until it has been decided from whom the overpayment is recoverable;

•	making decisions against all of those from whom an overpayment is recoverable is also right in principle;

•	it is difficult for a public authority, such as the NIHE, to justify not making a decision against any person from whom it is entitled to recover public money;

•	equally, any person from whom it is decided that an overpayment is recoverable is entitled to a decision which shows from which other persons the public authority is also entitled to recover the overpayment.

32.	In the instant case, the decision-maker in the NIHE should have made a single decision referring to all of those from whom the overpayment was recoverable, the claimant and the appellant, rather than separate and single decisions addressed to each of them.  When it was discovered that there had not been a single decision-making reference to both the claimant and the appellant, the decision-maker ought to have taken the revision decision-making action as suggested by Ms Murray.  Most significantly, the appeal tribunal ought to have considered the principles set out in R(H) 6/06 and remitted the case back to the NIHE to undertake the proper remedial decision-making action.  Its failure to do so renders its decision as being in error of law.

33.	I will examine, in more detail below, the consequences of my finding that the decision of the appeal tribunal is in error of law on the basis of the analysis set out above.

	What did the appeal tribunal do?

34.	The statement of reasons for the appeal tribunal’s decision is comprehensive and sets out the conclusions of the appeal tribunal in some considerable detail.  In summary, the appeal tribunal decided three things, as follows.

(i)	The appeal tribunal rejected the findings and conclusions of the NIHE with respect to the issue of whether the appellant had an established right to remain in residence in the property in respect of which HB was paid for the relevant period.  The appeal tribunal, (mistakenly in my view), sets out its reasoning on this issue in terms of the appellant’s knowledge of the background to the claimant’s actual residence in the relevant property.  In essence, however, the appeal tribunal is establishing that the decision by the NIHE that the original decision awarding entitlement to HB was based on ignorance of a material fact, namely that the claimant had a right to reside in the relevant property and, accordingly, had no liability to pay rent, was wrong.  Rather the appeal tribunal concluded that any agreement providing for the claimant to have a right of residence in the relevant property had been scrapped by the date and time of the tenancy agreement between the claimant and the appellant.

(ii)	The appeal tribunal decided that despite its conclusions set out at (i) above, it was under a duty to undertake further analysis of the decision awarding entitlement to HB.  The appeal tribunal concluded that the appellant had been, until late 2002, the legal or beneficial owner of the property in respect of which HB had been paid.  Although there is no specific reference to the appropriate regulation, the appeal tribunal applied regulation (9)(1)(h) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006 and concluded that:

(a)	as the claimant had previously owned the property in respect of which a liability to pay rent had arisen;

(b)	less than five years had elapsed since the claimant had ceased to own the property; and

(c)	the claimant could not have shown that he could not have remained in the property without relinquishing ownership

	then the claimant was to be treated as not being liable to making payments in respect of the relevant property.  Accordingly the claimant could not be entitled to HB for a period of five years from the date on which he ceased to be the owner of that property.  The appeal tribunal calculated that the claimant ceased to be the owner of the property in December 2002, and accordingly could not have an entitlement for a five year period from that date until December 2007.

(iii)	The overpaid HB was recoverable from both the claimant and the appellant.  The claimant had made misrepresentations concerning his previous ownership of the property and the date on which he had first occupied the property.  The appellant had withheld information concerning the date on which the tenancy commenced and the date the tenant first occupied the property.

	Was what the appeal tribunal did do correct?

35.	I would begin by stating that I have no problem with the appeal tribunal’s conclusions with respect to the issue of whether the claimant had ever established a legal right of residence in the property in respect of which the claim to HB was made and, more importantly, whether that right of residence was relinquished through the rescission of the agreement giving rise to it in the first place.  In my view the appeal tribunal has undertaken a careful and detailed analysis of the evidence in connection with this question.  Although, and as was noted above, the appeal tribunal set about the analysis of the evidence from the wrong perspective ie that of the appellant rather than the claimant, it has come to an unequivocal conclusion, through appropriate findings of fact, that there had been an agreement that the claimant should have a right of residence in the property which he had sold to his son in consideration of a payment of some £20000 but, more importantly, that the agreement giving rise to the right of residence was rescinded on the payment of a further sum of £5000.  The appeal tribunal found that although there had been no formal waiver of the right of residence, nonetheless, the agreement giving rise to it was rescinded.

36.	In the written observations on the application for leave to appeal Ms Murray submitted that the appeal tribunal failed to deal adequately with the legal status of the rescission arrangements.  More particularly, the appeal tribunal failed to outline what it meant when it concluded that the agreement giving rise to the right of residence had been ‘scrapped’.  In the written submission prepared for the oral hearing of the application Mr Hatton submitted that there was no reason why the agreement between the claimant and his son could not be rescinded in the manner in which the appeal tribunal decided it was.

37.	With respect to the submission from Ms Murray, I cannot agree with it.  I am of the view that what the appeal tribunal meant when it stated that the agreement had been ‘scrapped’ was that it had been rescinded in a formal legal sense.  In essence it was replaced by a second agreement that the first would be rescinded in consideration of a further payment of £5000.  I repeat that I cannot find fault with the appeal tribunal’s conclusions with respect to this issue.

38.	Was the appeal tribunal entitled to revisit the entitlement decision?  As was noted above, the appeal tribunal did not stop its consideration of the validity of the original decision giving rise to entitlement to HB, following its conclusions and findings with respect to the issue of the agreement giving rise to a right of residence and the rescission of that agreement.  It went on to conclude that the revision decision on entitlement should have been that, on an application of regulation (9)(1)(h) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006, the claimant could not be entitled to HB for a period of five years from the date on which he ceased to be the owner of that property.  The appeal tribunal calculated that the claimant ceased to be the owner of the property in December 2002, and accordingly could not have an entitlement for a five year period from that date until December 2007.

39.	In her written observations on the application for leave to appeal, Ms Murray submitted that the appeal tribunal was not entitled to revisit the entitlement decision in the manner in which it did.  Her principal argument was based on the application of paragraph 11 of Schedule 7 of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, which provides that:

‘11.  Subject to the provisions of this Schedule, any decision made in accordance with the preceding provisions of this Schedule shall be final.’

40.	The remainder of Schedule 7 is taken up with provision for decision-making in connection with HB.

41.	Ms Murray submitted that the decision of the Social Security Commissioner in Great Britain in CIS/1263/1997 is also relevant to the issue of whether the appeal tribunal was entitled to revisit the entitlement decision.  She cited paragraph 4 of that decision where the Commissioner stated:

‘… the first tribunal decision is final so that, subject of course to review and appeal, that tribunal’s decision that, in relation to the appeal before them, there was no entitlement to income support cannot be reopened …’

42.	Ms Murray also submitted that, in any event, even if the appeal tribunal did erroneously form the view that it was entitled to revisit the entitlement decision, the re-formulation was deficient in that the appeal tribunal did not specify specific dates for disallowance.

43.	In the written submission prepared for the oral hearing of the application, Mr Hatton submitted that Ms Murray had misinterpreted the decision of the Commissioner in CIS/1263/1997.  He thought that the cited decision was authority for the opposite position to that submitted by Ms Murray.  Further the decision in CIS/1263/1997 was confirmed by the decision of another Social Security Commissioner in CIS/1330/2002.  Mr Hatton made reference to paragraphs 17 to 19 of that latter decision where the Commissioner held:

‘17.	This was considered by Mr Commissioner Sanders in CIS/1263/1997.  An adjudication officer had decided that the claimant was no longer entitled to income support, because his capital exceeded the threshold for an award.  An adjudication officer had also given a separate recoverable overpayment decision.  The Commissioner was concerned with an appeal against the latter decision.  The claimant argued that he did not have the capital in excess of the threshold.  The tribunal decided that it was bound by the earlier decision.  The Commissioner held that that was wrong.  The first decision was final on the claimant’s entitlement, but the recoverability of the resulting overpayment was a separate issue.  The tribunal was entitled to make its own findings of fact on that issue, even if that resulted in inconsistent findings.

18.	The relevant legislation is now section 17 of the Social Security Act 1998.  It is differently worded from section 60.

	‘17.-(1) Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.

	(2)	If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of-

(a)	further such decisions;
(b)	decisions made under the Child Support Act; and
(c)	decisions made under the Vaccine Damage Payments Act.’

The only regulation made under section 17(2) is regulation 10 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  It is irrelevant in this case, as it deals with incapacity for work determinations.

19.	Unlike section 60(2), section 17 does not expressly provide that a finding of fact in one decision is not conclusive for further decisions.  However, that remains the law.  I have come to that conclusion for two reasons.  First, the reasoning of Mr Commissioner Sanders was derived from general principle about finality of findings.  He remarked (paragraph 4) that it was ‘only to be expected’ that different findings could be made in decisions dealing with different issues.  Second, section 17(2) presupposes that findings of fact in ‘further such decisions’ are not conclusive.  Otherwise, regulations would not be needed to make them so.’

44.	Mr Hatton also held that:

‘We note also that the Executive has noted in its submission to the Commissioner at paragraph 20, legislation similar to Section 17 referred to above, exists for Housing Benefit decision making at paragraph 11 of Schedule 7 to the Child Support, Pensions and Social Security Act (NI) 2000.  Also, Commissioner Mullan in decision C17/10-11(IB) (paragraphs 36 and 44) has recently endorsed decision CIS/1330/2002.  As a result, we would submit that the precedents set by the decisions referred to above are applicable in this case.’

45.	Finally Mr Hatton submitted that, in any event, the re-formulated entitlement decision of the appeal tribunal was to the same effect as that of the decision-maker in that it concluded that the claimant did not have an entitlement to HB for the whole of the relevant period albeit arriving at that conclusion in a different way and for different reasons than the decision-maker of the NIHE.

46.	I have also taken into consideration the decision of the Social Security Commissioner in Great Britain in R(IS) 13/05.  In that case, the Commissioner was considering the effect of the decision of the Tribunal of Commissioners in Great Britain in R(IB) 2/04 on the powers of an appeal tribunal when considering whether there is in place an entitlement decision effective to support a subsequent overpayment recoverability decision.  In this context, he stated, at paragraph 11:

‘I must deal briefly with the effect of the Tribunal of Commissioners’ decision R(IB) 2/04.  The statements in paragraphs 72 to 82 of that decision, as summarised in paragraph 192, were made in the context of what an appeal tribunal, carrying out a rehearing, could do on an appeal against a decision that was defective in some way.  It could be said that those statements should only apply where the appeal tribunal has the power to give a decision that avoids the defects of the initial decision.  It is no doubt the case that an appeal tribunal has no power to “remedy” or “perfect” or “recast” a decision that is not under appeal to it, like the decision of 16 July 2003 in the present case.  However, I agree with Mr Commissioner Bano in paragraphs 14 to 16 of decision CIS/3228/2003 that in such circumstances similar principles allow an appeal tribunal to ignore defects in the decision put forward as the basis of the overpayment recoverability decision, providing that those defects are not so extensive as to make the decision not a decision at all (see paragraphs 72 and 192(2) of R(IB) 2/04).  I prefer not to put the distinction in terms of form and substance, as that is not consistent with R(IB) 2/04.  Another Tribunal of Commissioners in R(IB) 7/04 applied the principles of R(IB) 2/04 is deciding whether decisions earlier in a chain than the decision under appeal were “so fundamentally flawed as to be inconsistent with any proper exercise of a legal power” (paragraph 18).’

47.	At paragraph 14 of CIS/3228/2003, Commissioner Bano had held that:

‘14.  The certified record of the decision makes no reference to section 9 of the 1998 Act and purports to record the making of a supersession decision, rather than a revision decision.  In CIB/4751/2002 and others the Tribunal of Commissioners held that a tribunal has power to make a revision decision if the Secretary of State has superseded, or refused to supersede, a previous decision, (paragraph 55), but in each of the cases before it the Tribunal of Commissioners held that there had been a valid supersession decision which was under appeal to the appeal tribunal.  The Tribunal of Commissioners considered that a tribunal must have power to give a decision under section 9 of the Social Security Act 1998 when the decision under appeal was made under section 10 (and vice versa) because of the need for a tribunal to have the same power to give an “outcome decision” in the case of a decision involving a change in entitlement to benefit as it has on an appeal against an initial decision-see paragraph 55(3).  However, in this case the claimant’s representative put the Secretary of State to proof that a decision had been made in accordance with the requirements of section 71(5A) of the Administration Act, but did not raise any entitlement issues and appealed only the recoverability decision.  There was therefore no issue before the tribunal with regard to the ‘outcome’ of the decision made on 9 December, and I therefore consider that the tribunal had no power to substitute any decision which they considered ought to have been made for the decision which was in fact made by the decision maker.

48.	The emphasis in the quotation is mine.  Further, at paragraph 17, Commissioner Bano held that:

‘… The tribunal was not called on to exercise any jurisdiction over the decision altering entitlement to benefit, other than to determine whether a valid decision had been made which complied with the requirements of section 71(5A) of the Administration Act ...’

49.	Although both Commissioners made their remarks in the context of overpayments of income support in Great Britain, I am of the view that the principles are equally applicable in the context of overpayments of HB in Northern Ireland.  In my view, and although left largely unsaid in the cases referred to above, the most important factor in prohibiting interference with or re-making of an entitlement decision in an overpayment recoverability appeal, is that the entitlement decision is not under appeal to the appeal tribunal.  That takes on a greater focus, as in the instant case, when the appellant, the subject of the entitlement decision is not present at an appeal tribunal hearing not dealing with an appeal against that entitlement decision, but which is primarily focusing on a different recoverability decision.  In the instant case, the net effect of the appeal tribunal’s actions was to re-make a decision not under appeal to it, in the absence of the subject of the decision, the appellant, potentially to his detriment, and without the appellant having been given the opportunity to be heard or to make representations in connection with the re-making.

50.	In the instant case, I am of the view that the appeal tribunal was entitled to enquire whether there was in place a decision which altered entitlement to HB.  Regulation 77 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006 provides that:

‘77.  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 including any excess of rebate (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 71 which is in excess of the entitlement to housing benefit as subsequently decided.’

51.	Once again, the emphasis in the quotation is mine.  In deciding, therefore, whether there was an overpayment of HB, the appeal tribunal has to decide that there was no entitlement.  In considering the entitlement decision, however, the appeal tribunal had no power to remedy, perfect or recast that decision.

52.	I have to consider, of course, the submission by Mr Hatton that, in any event, the re-formulated entitlement decision of the appeal tribunal was to the same legal effect as that of the decision-maker in that it concluded that the claimant did not have an entitlement to HB for the whole of the relevant period albeit arriving at that conclusion in a different way and for different reasons than the decision-maker of the NIHE.  In the language of the decisions cited above, Mr Hatton is submitting that the entitlement decision has not been remedied, perfected or recast.  With respect to that submission I cannot agree with it.  The appeal tribunal concluded that the original entitlement decision was in error.  The appeal tribunal concluded that the original decision awarding entitlement to HB was based on ignorance of a material fact, namely that the claimant had a right to reside in the relevant property and, accordingly, had no liability to pay rent, was wrong.  Rather the appeal tribunal concluded that any agreement providing for the claimant to have a right of residence in the relevant property had been scrapped by the date and time of the tenancy agreement between the claimant and the appellant.

53.	The appeal tribunal’s remedy was that the revision decision on entitlement should have been that, on an application of regulation (9)(1)(h) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006, the claimant could not be entitled to HB for a period of five years from the date on which he ceased to be the owner of that property.  The appeal tribunal calculated that the claimant ceased to be the owner of the property in December 2002, and accordingly could not have an entitlement for a five year period from that date until December 2007.

54.	The appeal tribunal did, therefore, remedy or perfect the decision.  Further, the recasting was in itself inconclusive as to the precise dates of disentitlement to HB, preferring to rely on a somewhat vague December 2002 to December 2007.  Finally, and most importantly, the appeal tribunal dealt with an issue which was not before it, and established a potential liability in the absence of the individual, the claimant, who had the potential to be affected by it.

	How should I dispose of the appeal?

55.	My first view on this issue was that I should follow the guidance given to adjudicating authorities by the Tribunal of Commissioners in Great Britain in R(H) 6/06.  I have concluded above that the decision-maker in the NIHE should have made a single decision referring to all of those from whom the overpayment was recoverable, the claimant and the appellant, rather than separate and single decisions addressed to each of them.  When it was discovered that there had not been a single decision making reference to both the claimant and the appellant, the decision-maker ought to have taken the revision decision-making action as suggested by Ms Murray.  Most significantly, I have concluded that the appeal tribunal ought to have considered the principles set out in R(H) 6/06 and remitted the case back to the NIHE to undertake the proper remedial decision-making action.  It was the failure to do so that rendered its decision as being in error of law.

56.	Should I, therefore, remit the case back to the NIHE to undertake the proper remedial decision-making action?  I am of the view that I should take a more pragmatic view and, rather than remitting, decide this appeal for myself.  I have noted that, at an early stage of the proceedings, a decision-maker of the NIHE had considered revising the original overpayment decision in line with the R(H) 6/06 principles but formed the view that it was not possible to make an overpayment recoverability decision against the estate of a deceased person without a grant of representation.  The decision of the Social Security Commissioner in Great Britain in R(IS) 6/01 was advanced as authority for this proposition.  In response, Mr Hatton submitted that a grant of representation is only necessary where there is either no executor of a will which has been granted probate or no personal representative if a person has died intestate.

57.	In R(IS) 6/01, the Commissioner undertook an extensive analysis of the power to make an overpayment recoverability decision against the estate of a deceased person.  At paragraph 31 of his decision, the Commissioner stated:

‘31.  The effect of Solly is clear in a case where probate or letters of administration have been granted, so that there are duly constituted personal representatives of the claimant’s estate.  An overpayment is recoverable from the personal representatives in that capacity and that is recovery from the deceased person …’

58.	The decision referred to is Secretary of State for Social Services v Solly [1974] 3 All ER 922.

59.	Mr Hatton advised that the claimant had left a will when he had passed away.  The will had been executed and there had been no dispute over this.  There was a duly constituted personal representative of the estate and, accordingly, an overpayment recoverability decision could have been made against the estate.  Accordingly, Mr Hatton submitted that the early submission that the original overpayment decision could not be revised because of a legal inability to recover from the deceased claimant’s estate was incorrect.

60.	I accept Mr Hatton’s evidence that there was a duly appointed personal representative of the deceased claimant’s estate and that, accordingly, the fact that the claimant was deceased did not prevent the instigation of remedial decision-making action to make a single decision referring to all of those from whom the overpayment was recoverable, the claimant and the appellant, rather than separate and single decisions addressed to each of them.  I have considered, however, the further evidence from Mr Hatton that the assets of the estate were minimal and were only sufficient to ensure the burial of the claimant.  The insufficiency of assets in the estate was also advanced by Ms Murray as a factor in the decision by the decision-maker of the NIHE not to consider revising the original overpayment recoverability decision.

61.	I have to accept the bona fides of both representatives in this matter.  In the case of Mr Hatton I accept that there were no assets of the deceased claimant’s estate worth pursuing by the NIHE on foot of any overpayment of HB.  On the part of Ms Murray I accept that the NIHE would not now consider pursuing an overpayment against the deceased claimant’s estate, even if it had the power to do so.  Remittal of this case for remedial decision-making action will only extend what have been protracted proceedings to date.  I decline, therefore, to remit the case and go on to decide the appeal for myself.

	My decision

62.	In the analysis above, I concluded that the appeal tribunal was entitled to enquire whether there was in place a decision which altered entitlement to HB.  Regulation 77 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006 provides that:

‘77.  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 including any excess of rebate (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 71 which is in excess of the entitlement to housing benefit as subsequently decided.’

63.	In deciding, therefore, whether there was an overpayment of HB, the appeal tribunal has to decide that there was no entitlement.

64.	As was also noted above, I have no problem with the appeal tribunal’s conclusions with respect to the issue of whether the claimant had ever established a legal right of residence in the property in respect of which the claim to HB was made and, more importantly, whether that right of residence was relinquished through the rescission of the agreement giving rise to it in the first place.  In my view the appeal tribunal has undertaken a careful and detailed analysis of the evidence in connection with this question.  Although, and as was noted above, the appeal tribunal set about the analysis of the evidence from the wrong perspective ie that of the appellant rather than the claimant, it has come to an unequivocal conclusion, through appropriate findings of fact, that there had been an agreement that the claimant should have a right of residence in the property which he had sold to his son in consideration of a payment of some £20000 but, more importantly, that the agreement giving rise to the right of residence was rescinded on the payment of a further sum of £5000.  The appeal tribunal found that although there had been no formal waiver of the right of residence, nonetheless, the agreement giving rise to it was rescinded.

65.	Section 129(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

‘129.—(1) A person is entitled to housing benefit if—

(a)  he is liable to make payments in respect of a dwelling in Northern Ireland which he occupies as his home;’

66.	There are, of course, other conditions of entitlement to HB.

67.	The basis of the entitlement decision of 13 December 2007, as revised on 26 October 2007, was that the claimant did not have an entitlement to HB as he had no liability to make payments in respect of the dwelling in which he occupied as his home.  This was because he had a legal right of residence in that property established by way of agreement between the claimant and his son when the claimant sold the property to his son.

68.	I accept and adopt the findings and conclusions of the appeal tribunal with respect to the issue of entitlement.  The claimant did not have a formal right of residence in the property in respect of which the claim to HB was made.  Accordingly, pursuant to the tenanacy agrement which he entered into with the appellant he was liable to make payments in respect of the dwelling which he occupied as his home.  A copy of the relevant tenancy agreement is included in the original appeal submission as Tab No 19.  The copy of the tenancy agreement included in the papers is of poor quality.  It is not clear, for example, whether it was signed by or on behalf of the appellant.  I am certain, however, that a clear liability in respect of payments rent was established on the part of the appellant.

69.	Accordingly if there was a liability to make payments in respect of the dwelling which he occupied as his home, then the provisions of section 129(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, are satisfied.  The NIHE awarded entitlement on the basis that the provisions of section 129(1)(a) were satisfied.  It purported to remove entitlement on the basis that they were not.  It submitted that the original entitlement decision was based on ignorance of a material fact, namely that the claimant had a right to reside in the relevant property and, accordingly, had no liability to pay rent.  That decision was wrong for the reasons set out above.  As I have established, therefore, that there was an entitlement to HB and that entitlement could not be removed on the ground submitted by the NIHE, there was no overpayment of HB.

	Further matters arising

70.	During the course of proceedings before me, there was a great deal of discussion and analysis concerning the issue of from whom any overpayment might be recoverable.  More particularly, the scrutiny concentrated on whether any overpayment could be recoverable from the appellant.  As I have decided that there has not been an overpayment of HB, the issue of any potential recoverability does not arise.  In deference, however, to the detailed submissions made by both Ms Murray and Mr Hatton on this question, I would add the following remarks.

71.	As was noted above, section 73(1) of the Social Security Administration (Northern Ireland) Act 1992 provides, inter alia, that any amount of HB determined to have been paid in excess of entitlement may be recovered by NIHE.  Section 73(3) of the Administration Act provides that:

‘(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.’

72.	In the instant case, the HB was paid directly to the appellant, as landlord – see Tab 4 of the original appeal submission.  Accordingly, if HB was overpaid, it is recoverable from her unless any of the prescribed circumstances apply.  What are the prescribed circumstances?

73.	Regulation 78(1) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006, as it was in force at the date of the decision under appeal, provides that any overpayment, except one to which paragraph (2) of regulation 78 applies, shall be recoverable.  In the instant case, there is no suggestion that regulation 78(2), which provides for overpayments which arise in consequence of official error, has any application.

74.	As was noted above, regulation 79 of the 2006 Regulations makes further provision for the prescribed circumstances in which an amount recoverable shall not be recovered from the person to whom it was paid.  In the instant case, there is no suggestion that regulation 79(1) is applicable.  Attention then turns to regulation 79(2).  Before looking at the wording of regulation 79(2) in more detail, it is important to note that both regulation 79(2)(i) and 79(2)(ii) are concerned with recovery from a person other than the person to whom it was paid.  In the instant case, as the HB was paid directly to the appellant as landlord, consideration of regulation 79(2) could only be in the context of potential recovery from someone else, namely the claimant.  One can understand why there was an argument put forward on the part of the appellant that the recovery should be from the claimant rather than the appellant.  For such an argument to succeed some part of regulation 79(2) would have to be applicable.  It is possible, at the outset, to discount the potential application of regulation 79(2)(ii).  That is because there could be no question of any overpayment arising in consequence of an official error.

75.	Looking at the wording of regulation 79(2)(i), it seems to me that its purpose is to permit an overpayment to be recoverable from someone other than the person to whom the HB has been paid.  The circumstances in which recovery is permitted from a different person than the person to whom the HB was paid is where the overpayment was caused by a misrepresentation or failure to disclose a material fact and the misrepresentation of failure to disclose was caused by that other person.

76.	In the instant case, it has been accepted by both Ms Murray and Mr Hatton that there was clear misrepresentation on the part of the claimant which arose in connection with the completion of the claim form to HB.  At page 17 of the relevant claim form the claimant was asked whether he had at any time owned the property in respect of which he was claiming HB.  The claimant answered ‘no’ to that question which was clearly untrue.  Ms Murray submits that certain inaccuracies and certain omissions in the replies given to other questions also amounted to a misrepresentation.  I make no comment on that submission but it is clear that there was a misrepresentation in connection with the answer given in connection with the question relating to previous ownership.  I also accept the further submission from Ms Murray that had the question relating to previous ownership been answered accurately by the claimant then it was highly likely that the NIHE would have been put on further enquiry.

77.	Was there any misrepresentation or failure to disclose on the part of the appellant?  I begin with any potential failure to disclose.  Regulation 63(1) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006 provides that:

‘63(1) Subject to paragraph (2) and to paragraph 5 of Schedule A1(a) (treatment of claims for housing benefit by refugees), a person who makes a claim, or a person to whom housing benefit has been awarded, shall furnish such certificates, documents, information and evidence in connection with the claim or the award, or any question arising out of the claim or the award, as may reasonably be required by the relevant authority in order to determine that person’s entitlement to, or continuing entitlement to, housing benefit and shall do so within one month of being required to do so or such longer period as the relevant authority may consider reasonable.’

78.	Regulation 65(1) of the 2006 Regulations provides that:

‘65(1)  Subject to paragraphs (2), (4) and (5), 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 …’

79.	Accordingly, during the making of a claim, a section 63(1) duty is imposed on ‘a person who makes a claim, or a person to whom housing benefit has been awarded’.  In the instant case, the person who made the claim was the claimant and the person to whom entitlement to HB was awarded was also the claimant.  HB was not awarded to the appellant but was payable to her as a landlord.  Accordingly, there could be no section 63(1) duty on the appellant at that stage.

80.	The section 65(1) duty relates to subsequent changes in circumstances.  For the purposes of section 65(1) the appellant, as a landlord, was a ‘… person by whom or on whose behalf sums payable by way of housing benefit are receivable ..’  She was, therefore, under a duty to notify any change of circumstances which she might reasonably be expected to have known might affect the entitlement of the claimant to HB.  I can see how it could be arguable that subsequent to the initial claim to HB there were no relevant changes of circumstances which the appellant might reasonably have been expected to know might affect the entitlement of the claimant to HB.

81.	What about misrepresentation, however?  Ms Murray submits that the appellant also made misrepresentations in the manner in which the HB Certificate of Occupation form was completed.  Ms Murray submits that there were inaccuracies and/or omissions in connection with responses to questions concerning the date on which the tenancy commenced and the date on which the tenant first occupied the property.  In connection with this issue, Ms Murray adds that the signature of the declaration page on the relevant page of the Certificate of Occupation Form that (i) the information given on the form was correct and complete and (ii) that she understood that it could amount to a criminal offence to give incorrect information or to withhold relevant information, when viewed in light of the evidence as a whole could also amount to a misrepresentation.

82.	With respect to her careful submission on this point, I am not as sure that the two questions concerning the commencement of the tenancy and the first date of occupation are as significant as Ms Murray suggests.  In my view, the question concerning the first date of occupancy is in connection with occupancy as a tenant under a tenancy agreement not the first de facto occupation at all.  Further, I am not at all convinced that had this question been answered the NIHE would, as has been suggested by Ms Murray, have been put on notice of further enquiry.  As was noted above, what would have placed the NIHE on further enquiry would have been the accurate response from the claimant that he had previously owned the property.  Ms Murray has also taken a view on the evidence submitted in connection with the appellant’s claim that she had no knowledge of the claimant’s previous involvement with the property in connection with which the claim to HB was made, including previous ownership and the establishment of a right of residence for life.  It is also possible, as is evidenced by the appeal tribunal’s own evidential assessment, fact-finding and conclusions, that a different view on this issue could be taken.

(signed)  K Mullan

Chief Commissioner

10 January 2012