Prince, R (on the application of) v The Social Security Commissioner

For housing benefit and council tax benefit, entitlement to income-based jobseeker’s allowance is relevant, not the fact that jobseeker’s allowance was mistakenly paid. A claimant is “on” jobseeker’s allowance only where the allowance is payable because the statutory conditions of entitlement are satisfied. A claimant who enters remunerative employment therefore cannot rely on continued erroneous payment as the basis for disregarding income. A separate duty to notify the local authority of changes in circumstances may also affect recoverability of overpayments.

The claimant sought judicial review of the Social Security Commissioner’s refusal of permission to appeal from an Appeals Service Tribunal decision. The tribunal had dismissed his appeal against Southwark’s decision that he had been overpaid housing benefit and council tax benefit after he began remunerative employment but continued to receive income-based jobseeker’s allowance.

The claimant argued that receipt of jobseeker’s allowance triggered entitlement to the other benefits, that any overpayment resulted from official error, and that he had not been in remunerative employment. The central issue was whether payment or entitlement to jobseeker’s allowance governed the relevant income disregard.

1. Claim dismissed. The tribunal’s decision was unarguably correct, and the Commissioner was entitled to refuse permission to appeal. The judicial review application was therefore refused.
2. There was no automatic passporting rule under which receipt of jobseeker’s allowance entitled a claimant to housing benefit and council tax benefit. The relevant provisions instead disregarded income where the claimant was “on” income-based jobseeker’s allowance.
3. Under regulation 2(3A) of the Housing Benefit (General) Regulations 1987, a person was “on” income-based jobseeker’s allowance only on a day in respect of which the allowance was payable. The reference to payment meant payment arising from entitlement, not an erroneous payment made when the statutory conditions were absent.
4. Section 1 of the Jobseekers Act 1995, including section 1(2)(b), required that the claimant not be engaged in remunerative work. Once the claimant began remunerative employment, he no longer satisfied the conditions of entitlement, regardless of the Department for Work and Pensions’ continuing payments. His income was consequently not to be disregarded for housing benefit or council tax benefit purposes.
5. The claimant’s official-error argument did not alter the result. He had a personal duty under the relevant benefit regulations to notify the Council of his change in circumstances. The overpayment was therefore overwhelmingly attributable to his failure to notify the designated office, rather than to any error by the Department for Work and Pensions. The tribunal’s finding that he was in remunerative employment was plainly open to it on the evidence.
6. Permission to appeal was refused because the statutory position was clear and an appeal had no real prospect of success. No order for costs was made, principally because the Council had served its representations late and had not served or filed a costs schedule.

• Appeals Service Tribunal: dismissed the claimant’s appeal against Southwark’s overpayment decision on 19 January 2006.
• Appeals Service Tribunal: refused permission to appeal on 4 May 2006.
• Social Security Commissioner: refused permission to appeal to a Commissioner.
• High Court (Administrative Court): refused judicial review and refused permission to appeal.