The London Borough of Waltham Forest v CA

Housing benefit overpayments must be examined payment by payment where a claimant’s circumstances or earnings change during the relevant period. The tribunal must make findings for each change sufficient to decide whether each overpayment resulted from official error and whether the claimant caused or materially contributed to it.

Universal credit is not a qualifying income-related benefit under regulation 2(1) of the Housing Benefit Regulations 2006. The provision lists specified legacy benefits and cannot be extended to universal credit without effectively redrafting the statutory instrument.

CA received housing benefit and began employment on 13 January 2020. She notified the local authority on 5 March 2020. The authority later decided that housing benefit paid between 27 January and 23 March 2020 was recoverable.

The First-tier Tribunal allowed CA’s appeal, finding that the overpayment resulted from official error and was not recoverable. The London Borough of Waltham Forest appealed, arguing that the tribunal had failed to address separate changes in earnings, official error, contribution to the error, and the effect of notification.

The Upper Tribunal considered whether the First-tier Tribunal had made a material error of law and, additionally, whether universal credit was a qualifying benefit for extended housing benefit payments.

1. Appeal allowed and decision set aside. The First-tier Tribunal had made an error of law by treating notification as a single event and failing to make sufficient findings of fact and reasons concerning each change in CA’s circumstances and earnings. The overpayments had to be considered separately as a series of payments, because actual or imputed knowledge may change over time. This approach followed Calderdale Council (HB) [2016] UKUT 396 (AAC), itself following CH/858/2006.

2. Under regulation 100 of the Housing Benefit Regulations 2006, overpayments are generally recoverable. The exception applies only where the overpayment arose from official error, no relevant person caused or materially contributed to that error, and no relevant person could reasonably have been expected to realise that an overpayment had been made when it was received or notified.

3. Regulation 88 imposes a general duty to notify the authority of a change of circumstances which might affect entitlement to, the amount of, or receipt of housing benefit. The First-tier Tribunal had to consider the duty and any notification separately in relation to the relevant payments.

4. Universal credit is not a qualifying income-related benefit under regulation 2(1). Applying the primacy of statutory text and ordinary natural meaning, the specified definition cannot be read as including universal credit without effectively redrafting the regulation. This conclusion was not material to the disposal of the appeal.

5. The appeal was remitted to a differently constituted First-tier Tribunal for a complete rehearing. The new tribunal was required to make fresh findings on notification, official error, contribution, and whether the claimant could reasonably have realised the overpayment. It could not rely on the findings or conclusions of the tribunal whose decision had been set aside.

• Upper Tribunal (Administrative Appeals Chamber): the First-tier Tribunal decision of 3 September 2021 was set aside for error of law and the appeal was remitted for rehearing before a differently constituted tribunal.
• First-tier Tribunal (Social Security and Child Support): allowed CA’s appeal and found the housing benefit overpayment irrecoverable.