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Recovery of overpayment - calculation of overpayment - whether, under the law applicable before 2.10.00, a deduction could be made for the "amount ... properly payable" in respect a period after the date on which termination of income support had brought the benefit period to an end
The claimant was awarded income support and housing benefit. She subsequently started work but did not report this fact to the local authority. In December 1998 a decision was made by an adjudication officer that she was no longer entitled to income support with effect from June 1998. That decision had the effect of bringing the benefit period to an end from June for housing benefit purposes. In February 1999 the local authority determined that there was a recoverable overpayment of housing benefit in respect of the period June to December 1998, calculated as being the whole amount of housing benefit awarded for that period.
The claimant appealed on the grounds that the calculation of the recoverable amount should include a deduction under regulation 104(a) of the Housing Benefit (General) Regulations 1987 ("the Regulations") of the "amount ... properly payable" during the period concerned, calculated as the amount her entitlement would have been if her earnings had been taken into account in the assessment. The appeal tribunal rejected the appeal, considering that it was bound by the decision of the High Court in R v. Wyre Borough Counci, ex parte Lord, which held that no such deduction could be made for any period after the termination of income support had brought the benefit period to an end. The claimant appealed to a Commissioner, who also rejected the appeal, holding that, although he was not bound by the decision in ex parte Lord, as he could see no good reason not to follow it, he would do so. The claimant appealed to the Court of Appeal.
By the time that the case reached the Court, regulation 104 had been replaced by an amended version, effective from 2 October 2000, which it was accepted would have required the local authority to make the deduction argued for by the claimant. However the Court had to consider the effect of regulation 104(a) as it was worded at the time of the decision under appeal.
Held, allowing the appeal, that:
1. The words "amount ... properly payable" in the former regulation 104(a) should not be construed as meaning the amount of benefit to which the claimant had an entitlement. If it did, regulation 104(a) would be otiose, as the question of entitlement would already have been dealt with under regulation 98 of the Regulations (paragraph 29);
2. to the extent that the decision in ex parte Lord held to the contrary of point 1 above, that case was wrongly decided (paragraph 30);
3. where a change of circumstances comes to the attention of the local authority belatedly, there will be a review of the claimant's award that will take effect from a past date. If the result of the review is that the claimant continues to have an entitlement to benefit at a reduced rate for the remainder of the benefit period, the definition of "overpayment" in regulation 98 will itself take account of that entitlement (paragraph 39);
4. the cases in which the former regulation 104(a) must have been intended to have effect are those where, following review, there was no entitlement to benefit at a reduced rate, including cases where, under regulation 67(1) of the Regulations, the change of circumstances that gave rise to the review itself had the effect of bringing the benefit period to an end (paragraph 40);
5. the words "amount ... properly payable" in the former regulation 104(a) must be construed, in cases where the termination of income support had brought the benefit period to an end, to mean the
amount that should have been determined to be payable on the basis of the claim as it would have appeared if, at the time of the relevant change of circumstances, (i) the change had been reported; and (ii) a fresh claim for housing benefit had been made (paragraph 44).
The decision of the appeal tribunal was set aside and the case remitted to the local authority to recalculate the recoverable overpayment in the light of the Court's judgment. |
