RW v Sheffield City Council & Anor

An overpayment of housing benefit arises where the existing claimant has ceased to be entitled and another potential claimant has made no claim. The fact that the other person might have been entitled does not prevent an overpayment.

Under regulation 100 of the Housing Benefit Regulations 2006, recoverability turns on the broad, composite question whether the substantial cause was a wholly uninduced official error or the claimant’s own failing. Where a designated office may have prevented a non-tenant claimant from reporting a change, the tribunal must determine what occurred and whether the claimant could reasonably have done more. A claimant who received neither the rebate nor related notices may be unable reasonably to realise there was an overpayment.

The appellant had claimed housing benefit in respect of the rent of the family home, although the tenancy and rent account were in his wife’s name. After their separation, he left the property but benefit continued as a rent rebate credited to her account. The council decided that the payments made after his departure were overpayments and recoverable.

The First-tier Tribunal, in decision no SC147/14/01379, dismissed his appeal. He contended that he had tried unsuccessfully to notify the local housing office, Sheffield Homes, but was unable to discuss the matter because he was not the tenant. The appeal raised whether the payments were overpayments and, if so, whether they resulted from an official error so that they were not recoverable.

1. Appeal allowed. The First-tier Tribunal’s decision involved a material error of law. It was set aside and remitted to a differently constituted First-tier Tribunal for a fresh oral hearing.

2. The payments after separation were overpayments. While the appellant and his wife lived together, regulation 8 treated each as liable for the rent and regulation 82 allowed them to choose one claimant. Once the appellant left, he was no longer treated as liable for that property. His former wife had made no claim. Her possible entitlement therefore did not preserve entitlement under his claim.

3. The tribunal failed to decide the appellant’s factual case that he had attempted to report the change to Sheffield Homes. Its finding that he had not notified the council did not explain whether it had considered an attempted notification to the designated office. That issue required factual findings and could not be dismissed as inherently implausible.

4. Regulation 100(3) required the broad, common-sense inquiry into the substantial cause of the overpayment. If the appellant’s account were accepted, it was open to the tribunal to find that the substantial cause was an official error by staff at the designated office, rather than a failing by him. A designated office needed a means for a claimant who was not the tenant to report a change. Whether he could reasonably have done more depended on the content of the conversation and the tribunal’s assessment of the facts.

5. The council conceded, correctly, that the appellant could not on these facts reasonably have been expected to realise that an overpayment had occurred. The benefit was credited to his former wife’s rent account and, if his account were accepted, he received no related notices.

6. The Upper Tribunal did not determine the separate recovery issue. It observed that regulations 101(2) and 104(1) might be relevant if the remitted tribunal found a recoverable overpayment, but regulation 104(1) did not apply because the appellant and his former wife were not partners during the relevant period.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the case for fresh determination.
• First-tier Tribunal: On 17 February 2015, in decision no SC147/14/01379, dismissed the appellant’s appeal against the overpayment and recovery decisions.