Tendring District Council v Secretary of State for Work and Pensions & Anor

For a housing-benefit overpayment to be recovered from someone other than the claimant, the administering authority must make a specific decision to that effect and notify that person so that statutory appeal rights can be exercised. Notices addressed to a person as the claimant’s representative, but directed to the claimant and referring to the claimant’s claim, do not establish a personal recovery decision. Later correspondence, enforcement conduct or an asserted administrative mindset cannot retrospectively create or alter that decision. A full rehearing does not cure the defect where the proposed debtor was not a party and lacked equivalent procedural protections. A representative or quasi-litigation friend performs vicarious functions and does not become a party through participation alone.

Tendring District Council sought recovery of a Housing Benefit overpayment of £67,421.79 from AB and CD. The First-tier Tribunal, on 21 March 2018, held that the overpayment was recoverable from both. The Upper Tribunal, in a decision dated 30 June 2022 and sealed on 14 July 2022, allowed AB’s appeal so far as recovery from CD was concerned, while maintaining the decision against AB.

Tendring appealed on whether its 18 July 2012 notices constituted a decision to recover from CD and notified her of that decision; whether later correspondence or the full tribunal hearings cured any defect; whether CD could be treated as a party; and whether her spent criminal convictions required consideration.

Disposition. The appeal was dismissed. Tendring had not established a legally effective basis for recovering the overpayment from CD.

1. Decision and notification. Under regulation 71(1) of the Housing Benefit (General) Regulations 1987, only one member of a couple could claim Housing Benefit. AB was the documented claimant. The 18 July 2012 notices were addressed to CD in accordance with Tendring’s established practice of corresponding with her on AB’s behalf, but were directed to AB and referred to his claim. Nothing in their wording evidenced a decision to recover the overpayment from CD personally. Later correspondence, including the assertion of joint liability, could not retrospectively change the original decision. An alleged administrative mindset was insufficient evidence of a specific decision or notification: [50]-[55], [78].
2. Effect of the tribunal hearings. A full rehearing does not automatically cure a failure to make or notify a personal recovery decision. The relevant inquiry was whether CD was a party and, if not, whether she had rights and protections equivalent to those of a party. CD had not been made a party. She had acted for AB and sometimes given evidence, but her instructions on AB’s behalf could differ from instructions on her own behalf. There was a potential conflict of interest, and she could not realistically protect AB’s interests while also defending herself against a recovery claim.
3. Representative status and capacity. Acting as a representative or quasi-litigation friend involved vicarious functions and did not confer party or de facto party status. The court applied the principle stated in Re E [1984] 1 WLR 320 at p324. AB’s Deputyship and Lasting Power of Attorney did not confer authority to conduct litigation. Where there is reason to suspect incapacity, investigation should generally take place. The formal litigation-friend rules in the Civil Procedure Rules 1998 and comparable rules did not apply in identical form to tribunals, whose procedure was more flexible, but that flexibility did not supply the missing procedural protections: [58]-[77].
4. Final consequence. Tendring could have sought a decision against CD and, if appropriate, used the tribunal’s case-management powers to add her. Its own procedural and substantive failures meant that the defects were not cured by CD’s participation in the First-tier Tribunal or Upper Tribunal proceedings. The issue concerning her spent convictions therefore did not arise: [77]-[80].

• Court of Appeal (Civil Division) dismissed Tendring District Council’s appeal and held that recovery from CD had not been legally established: [2024] EWCA Civ 1509.
• Upper Tribunal (Administrative Appeals Chamber), Judge Perez, decided on 30 June 2022 and sealed the order on 14 July 2022. It allowed AB’s appeal concerning recovery from CD and set aside that part of the First-tier Tribunal’s decision, while maintaining AB’s liability.
• First-tier Tribunal, on 21 March 2018 after remittal, held that the Housing Benefit overpayment was recoverable from both AB and CD. A prior First-tier Tribunal decision had been remitted by the Upper Tribunal in September 2017.