Capital Housing Association Limited v London Borough of Ealing & Anor

Where housing benefit has been paid to a landlord, regulation 101(2) of the Housing Benefit Regulations 2006 does not make the claimant solely liable unless the applicable sub-paragraph expressly shifts recovery from the payment recipient to a different person.

Under regulation 101(2)(b), the person who misrepresented or failed to disclose a material fact must be different from the person to whom the payment was made. Under regulation 101(2)(c), official error and a recipient’s reasonable ability to recognise an overpayment are necessary but insufficient: that person must also be different from the payment recipient. Otherwise, the default joint-recovery position in regulation 101(2)(a) applies.

Capital Housing Association Limited received housing benefit directly in respect of a tenant’s tenancy. The tenant moved out in November 2018, but payments continued. The local authority decided that a recoverable overpayment of £37,805.89 could be recovered from both the tenant and the landlord.

The First-tier Tribunal confirmed that decision. It found that the tenant had validly notified the authority by telephone in December 2018 and that the ensuing overpayments resulted from official error. It also made an immaterial finding that regulation 101(2)(c) made the overpayment recoverable only from the landlord.

On the landlord’s further appeal, the central issue was whether regulation 101(2) of the Housing Benefit Regulations 2006 prevented recovery from the landlord.

1. Appeal dismissed. The landlord’s submissions were attempts to reargue evidence. The First-tier Tribunal was entitled to find that the tenant had notified the authority by telephone in December 2018, using a telephone-notification route permitted by regulation 88(1)(b)(i) of the Housing Benefit Regulations 2006.

2. The First-tier Tribunal’s task was to decide afresh and independently what decision ought to have been made, rather than to review the lawfulness of the authority’s earlier reasoning. It was therefore not bound by any earlier view taken by the authority: R(IB)2/04, R(IB)2/04, applied.

3. The valid notification meant that continued payments after December 2018 were official-error overpayments. It was not disputed that a notification under regulation 88(1) amounted to disclosure for regulation 101(2)(b): B v SSWP, [2005] EWCA Civ 929, applied.

4. Regulation 101(2)(b) could not make the tenant solely liable. It operates only where the person who failed to disclose or misrepresented a material fact is different from the person who received the payment. As the tenant had disclosed the material fact, the provision did not displace the landlord’s liability as recipient. The validity of the landlord’s later telephone or email notifications was therefore immaterial.

5. The First-tier Tribunal erred in relying on regulation 101(2)(c). Official error and the landlord’s ability reasonably to recognise the overpayment were necessary but not sufficient conditions. Regulation 101(2)(c) also requires that the person able to recognise the overpayment be different from the payment recipient. That was not so here. The error was immaterial because regulation 101(2)(a) applied, making the overpayment recoverable from both tenant and landlord.

6. The First-tier Tribunal’s decision confirming the authority’s recoverability decision was correct and was not set aside.

• Upper Tribunal (Administrative Appeals Chamber) — dismissed the landlord’s appeal and confirmed that the recoverable overpayment could be sought from both the tenant and the landlord: [2025] UKUT 125 (AAC).
• First-tier Tribunal (Social Entitlement Chamber) — on 30 November 2023, confirmed the local authority’s decision that the landlord was a person from whom the overpayment could be sought.