Lebbie v London Borough of Bromley

Where the Upper Tribunal has set aside a First-tier Tribunal decision and remade it, the Court of Appeal may adopt a flexible approach to permission to appeal. An important point of principle or practice is not essential where another compelling reason exists. Serious uncertainty about the amount recoverable, unresolved differences in calculations and potentially serious financial consequences may provide such a reason. In official-error overpayment cases, a requirement that the claimant must not have materially contributed to the error is distinct from a finding that the claimant contributed to it. A finding of contribution alone may therefore leave an arguable issue as to material contribution.

Mr Lebbie challenged alleged recoverable housing benefit and council tax benefit overpayments. Judge Harty in the First-tier Tribunal found that he had acted in good faith but held that sums were recoverable under the relevant regulations. Judge Poynter in the Upper Tribunal agreed on recoverability in a decision dated 20 February 2015, corrected on 1 July 2015. The figures and calculation method remained disputed, including after a further calculation supplied by the local authority. Mr Lebbie applied out of time for permission to appeal. The central issue was whether an extension of time and permission should be granted, including in light of the possible distinction between contribution and material contribution to official error.

1. Extension of time. The application for permission to appeal was significantly out of time. An extension was granted because the applicant, who was acting in person, said that delay in receiving evidence papers had prevented him from preparing his case. The local authority’s further correction of the figures also demonstrated continuing uncertainty.
2. Permission to appeal. The court considered that the amount of any overpayment and the method of calculation were unsettled. There were differences between the calculations used at various stages, and the applicant appeared to challenge at least one figure. Those matters required examination before the issue of recoverability could properly be resolved.
3. The relevant housing benefit and council tax benefit regulations required that, for an error to be an official error, the claimant must not have materially contributed to it. The First-tier Tribunal had found that the applicant contributed to the errors, but had not expressly found that he materially contributed to them. That distinction supplied an arguable issue, although the court did not determine the merits.
4. Following JD (Congo) [2012] EWCA Civ 327, the Court of Appeal had greater flexibility where the Upper Tribunal had set aside the First-tier Tribunal’s decision and remade it. This was a case in which another compelling reason for permission existed. The potential effects of the decision on the applicant were serious, notwithstanding the absence of alternative figures establishing that nothing was payable and the uncertainty about the ultimate prospects of success.
5. Extension of time and permission to appeal were granted. The appeal was directed to be heard before two Lord Justices, one of whom could be a High Court judge, for half a day.

• First-tier Tribunal: Judge Harty found that the applicant had acted in good faith but that overpayments were recoverable under the relevant housing benefit and council tax benefit regulations.
• Upper Tribunal (Social Entitlement Chamber): Judge Poynter agreed on recoverability in a decision dated 20 February 2015, corrected on 1 July 2015.
• Court of Appeal (Civil Division): Extension of time and permission to appeal granted.