Secretary of State for Work And Pensions v Chiltern District Council & Anor

In housing benefit overpayment cases, the local authority’s choice of the person from whom it will seek recovery is a decision under Housing Benefit (General) Regulations 1987, regulation 101. The selected person may appeal to an appeal tribunal under Schedule 7 to the Child Support, Pensions and Social Security Act 2000. The ending of a benefit period when a passport benefit ceases is separate from calculating any offset against the recoverable overpayment. The authority must apply regulation 67, and need not postpone termination until it has information for regulation 104.

The Secretary of State appealed from a decision of Mr Commissioner Jacobs dated 15 July 2002. Housing benefit had been paid to a landlord while the claimant received income-based job seeker’s allowance. When that allowance ended, the local authority treated the housing benefit as overpaid and sought recovery of approximately £769.86 from the landlord.

The Commissioner held that an appeal tribunal had no jurisdiction over the authority’s choice of recovery target. He also held that the authority had to obtain information and apply the overpayment-offset provisions before ending the housing benefit award. The appeal concerned whether those conclusions were correct.

Appeal allowed. Lady Justice Hale gave the leading judgment. Lady Justice Arden and Lord Justice Brooke agreed.

1. Choice of person for recovery. Section 75(3) of the Social Security Administration Act 1992 makes an overpayment recoverable from the person to whom it was paid and permits recovery from another prescribed person. Regulation 101 supplies the further statutory authority for recovery from persons other than the payee. The power to choose between those persons is therefore a decision under regulation 101, not a discretion operating outside the statutory scheme.
2. The appeal provisions in Schedule 7 to the Child Support, Pensions and Social Security Act 2000, read with regulation 16(1) and the relevant Schedule to the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, preserve a right of appeal against that decision. An appeal tribunal accordingly has jurisdiction to examine the authority’s exercise of the choice. Appeals lie against decisions, rather than merely against the grounds for them.
3. Cessation of benefit. Regulation 67(1)(a) and (b) of the Housing Benefit (General) Regulations 1987 specifies when the housing benefit period ends following cessation of income support or income-based job seeker’s allowance. The authority cannot postpone that statutory termination until it has gathered information or applied regulation 104.
4. Offset calculation. Regulation 104 is a separate mandatory mechanism for calculating the amount of a recoverable overpayment. Regulation 104(2) treats cessation of the passport benefit as not ending the benefit period only for calculating the deduction. Regulation 72(14)(a) permits a fresh claim to facilitate that calculation, but does not extend the original benefit period.

The Commissioner’s decision was set aside and the matter was remitted to an appeal tribunal for determination.

• Court of Appeal (Civil Division): [2003] EWCA Civ 508. Appeal allowed; the Commissioner’s decision was set aside and the matter remitted to an appeal tribunal.
• Social Security Commissioner: Decision dated 15 July 2002. Held that there was no appeal against the authority’s choice of recovery target and that regulation 104 had to be applied before termination of the housing benefit award.