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Neutral Citation Number:
Reported Number:	R(H)10/08
File Number:	CH 3586 2007
Appellant:
Respondent:
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	27/03/2008
Date Added:	11/04/2008
Main Category:	Housing and council tax benefits
Main Subcategory:	recovery of overpayments
Secondary Category:
Secondary Subcategory:
Notes:	Housing and council tax benefit – recovery of overpayments – official error – local authority tenant – information notified to housing office and not passed on to benefits service The claimant was the tenant of a council flat in the respondent’s area. The management of her flat and tenancy was the responsibility of the council’s relevant district housing office. The claimant was in receipt of housing benefit and council tax benefit, administered by the council’s benefits service, which was a different department from that of the housing offices. The claimant was in Ghana between November 2005 and October 2006. She stated that on a number of occasions during her absence she had informed the district housing office of her absence. The council decided that the claimant had not been entitled to benefit during her absence abroad and that benefit given had been overpaid and was recoverable. The claimant appealed against both the entitlement and the overpayment decision. The tribunal upheld both decisions, finding that the claimant had failed to discharge her duty to inform the relevant department. The claimant appealed to the Commissioner against the decision on recoverability, submitting that the tribunal had failed to consider whether failure by one department of the authority to pass on information to another constituted official error for the purposes of regulation 81 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, whether that error caused the overpayment, and, if it did, whether the claimant could reasonably have been expected to realise she was being overpaid. Held, allowing the appeal, that: 1. the tribunal had erred in failing to consider whether the alleged omission of the housing office to pass on information to the benefits service amounted to an “official error” as defined in regulation 81; however, such a finding would have to be based on either a reasonably based expectation that the information would be passed on to the benefits service or the existence of internal arrangements or practices for passing on information (paragraphs 24 to 26); 2. for the purposes of the definition of official error in regulation 81, an officer of the housing office was an officer of the “relevant authority” and that interpretation was supported by the different wording in regulation 69, which required notification of a change of circumstances to a “designated office” (CH/2321/2002 cited) (paragraphs 27 to 29); 3. the tribunal should also have considered and determined whether the overpayments were caused by a wholly uninduced official error or were rather the result of the claimant’s failure in breach of duty to inform the benefits service of her change in circumstances, following the approach of asking what was the substantial cause of the overpayment set out in R (Sier) v Cambridge City Council Housing Benefit Review Board [2001] EWCA Civ 1523 (paragraph 30). The Commissioner remitted the case to a differently constituted tribunal for rehearing.
Decision(s) to Download:	R(H) 10-8 bv.doc