DG (by his appointee JG) v Bromley London Borough Council

For housing benefit overpayments, non-compliance with the prescribed method of notification does not by itself establish that there was no official error, or that the claimant materially contributed to it. The authority must consider what information was disclosed and whether its officer should have asked an obvious follow-up question. A fact is material objectively if disclosure would have prevented the overpayment; the claimant’s knowledge of its significance is irrelevant to that question. However, an official error does not prevent recovery where the claimant’s failure to disclose a material fact materially contributed to the overpayment. Causation is assessed practically and substantively, by asking whether the overpayment resulted from a wholly uninduced official error or from the claimant’s own failure to disclose.

The Council decided that £11,002.15 in housing benefit had been overpaid while the claimant was in hospital. The First-tier Tribunal found that the claimant’s mother, acting as his appointee, had told the Council that he was in hospital but had not disclosed the duration of his absence. It held that the overpayment was recoverable from the claimant, but not from the landlord, and dismissed the appeal.

The claimant appealed to the Upper Tribunal, arguing that the Council’s officer had made an official error by failing to record the oral notification, ask how long the hospital stay had lasted, or explain the written-notification requirement. The central issues were whether there had been an official error and whether the claimant’s failure to disclose the duration of the hospital stay materially contributed to the overpayment.

1. Appeal dismissed. The First-tier Tribunal’s decision did not involve a material error of law. The overpayment remained recoverable.
2. Regulation 88(1) of the Housing Benefit Regulations 2006 prescribes the permitted methods of notification. The claimant had not complied with it because there was no written notification, permitted telephone notification, or agreed alternative method. That conclusion did not determine whether the Council had also made an official error.
3. The appointee disclosed that the claimant was in hospital but did not disclose the duration of his stay. The duration was objectively a material fact under regulation 101(2)(1)(b), because disclosure would have prevented the overpayment. Whether the appointee knew or appreciated its significance was irrelevant to that question. Her knowledge could have been relevant only to the separate inquiry under regulation 100(2), which the Judge did not decide.
4. The Council’s officer made an error by failing to ask the obvious follow-up question: how long had the claimant been in hospital? The officer could not be absolved merely because the disclosure was oral or partial. The officer was not, however, required to repeat the written-notification instruction or require completion of a form, since the claimant had already been told that changes had to be notified in writing.
5. Applying the practical and substantive causation approach in Sier and SN v Hounslow LBC, the relevant question was whether the overpayment resulted from a wholly uninduced official error or from the claimant’s own failure to disclose. The failure to disclose the duration of the hospital stay materially contributed to the Council’s error. The regulation 100(2) issue therefore did not arise.
6. The Tribunal’s statement that there had been no official error was overly compressed. The more accurate analysis was that there was error by the Council’s officer, but the claimant’s failure materially contributed to it, so the overpayment was recoverable. The formulation did not amount to a material error of law. The claimant’s lack of mental capacity was not relevant under the housing benefit legislation, although it could be relevant to the Council’s discretion whether to recover.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal against the First-tier Tribunal’s decision under [2024] UKUT 49 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): on 17 February 2021, held that the overpayment was recoverable from the claimant, but not from the landlord, and dismissed the appeal.