Jamila Ali Adan v London Borough of Hounslow and Secretary of State for Work and Pensions

For the purposes of pre-amendment regulation 104(a) of the Housing Benefit (General) Regulations 1987, an amount ‘properly payable’ means the amount that should have been payable on the corrected facts. A fresh claim is not required for that calculation. The claim requirement in section 1(1) of the Social Security Administration Act 1992 does not import all entitlement procedures into regulation 104. The same approach applies where cessation of income support ends the benefit period: future entitlement may require a fresh claim, but past overpayment must still be recalculated by reference to the underlying benefit. The decision in R v Wyre Borough Council, ex parte Lord was overruled on this issue.

The appellant received housing benefit and income support. She failed to report that she had started work, resulting in overpaid housing benefit and council tax benefit between 22 June and 13 December 1998. Her income support entitlement was later terminated retrospectively.

Hounslow’s appeal tribunal, on 15 August 2002, held that the authority could recover the full overpayment without deducting the benefit that would have been payable on the true facts. The Social Security Commissioner dismissed the appellant’s appeal on 26 February 2003. The central issue was the construction of pre-amendment regulation 104(a) of the Housing Benefit (General) Regulations 1987, particularly whether underlying benefit could be deducted where no fresh claim had been made after income support ended.

The appeal was allowed unanimously. Lord Justice Keene gave the leading judgment. Lord Justice Chadwick agreed and added observations on the statutory scheme. Lord Justice Peter Gibson agreed with both judgments.

1. Regulation 98 of the Housing Benefit (General) Regulations 1987 defines an overpayment by reference to benefit paid without entitlement. An original claim and determination generally provide the basis for a later review under regulation 79 when a relevant change of circumstances is discovered. A fresh claim is not ordinarily required to revise the amount payable during a continuing benefit period.
2. In the pre-amendment form of regulation 104(a), ‘amount properly payable’ does not mean only benefit payable under a fresh, valid claim. It means the amount that should have been determined as payable on the basis of the claim as it would have appeared if the relevant change of circumstances had been notified when it occurred.
3. Where a change of circumstances does not end the benefit period, the review under regulation 79 and the definition in regulation 98 may themselves establish the amount of the overpayment. Regulation 104(a) is directed particularly to cases where the review does not produce continuing entitlement at a reduced rate.
4. Cessation of income support may end the benefit period under regulation 67(1)(a), and future housing benefit may then require a fresh claim, as recognised in Secretary of State for Work and Pensions v Chiltern District Council ([2003] EWCA Civ 508). That does not exclude regulation 104(a) from applying to past overpayments. The amount must be assessed as if the change had been notified and the benefit period had not ended, or as if a fresh claim had been made. There was no principled basis for distinguishing income-support cases from other cases.
5. R v Wyre Borough Council, ex parte Lord (unreported, 24 October 1997) was wrongly decided on this issue and was overruled. The later amendment to regulation 104 removed the ambiguity and reversed that decision’s effect, but did not determine the construction of the original wording.

The decision of the appeal tribunal was set aside. The matter was remitted to Hounslow to recalculate the recoverable housing benefit and council tax benefit overpayments for the relevant period. Hounslow and the interested party were ordered jointly to pay the appellant’s costs.

1. Court of Appeal (Civil Division) allowed the appeal, set aside the appeal tribunal’s decision and remitted the matter to Hounslow for recalculation. ([2004] EWCA Civ 101)
2. Social Security Commissioner dismissed the appellant’s appeal from the Hounslow appeal tribunal on 26 February 2003.
3. Appeal Tribunal at Hounslow held on 15 August 2002 that the full overpayment was recoverable without deduction for underlying entitlement.