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Neutral Citation Number:	2010 UKUT 57 AAC
Reported Number:
File Number:	CH 2297 2009
Appellant:	SN
Respondent:	London Borough of Hounslow
Judge/Commissioner:	Judge P. L. Howell Q.C.
Date Of Decision:	18/02/2010
Date Added:	15/03/2010
Main Category:	Housing and council tax benefits
Main Subcategory:	recovery of overpayments
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2010] AACR 27. Recovery of overpayment – housing and council tax benefit – official error and separate causation (Paragraphs 1 to 27 and 49 to 63 only are reproduced see note to paragraph 27). The claimant was awarded housing and council tax benefit from 23 May 2005. Between that date and January 2007 she failed to report promptly a number of relevant changes of circumstances, but the council also made errors, in particular treating her husband’s weekly earnings as if they were monthly, and the combined effect was that she was overpaid benefit over an extended period. In April 2007 the claim was finally reassessed correctly from the beginning and the council claimed to recover all the overpaid amounts from the claimant without differentiation. It acknowledged that there had been a mistake in its own calculations but determined that the totals overpaid were still legally recoverable from her under sections 75–76 Social Security Administration Act 1992 and the relevant regulations. The claimant appealed to the tribunal which held that it was not necessary to differentiate within the overall total between amounts that had been overpaid for different reasons, so that she was liable to repay the whole as a person who had “contributed to the overpayment” within regulation 100(3) of the Housing Benefit Regulations 2006. The tribunal cited R (Sier) v Cambridge CC HBRB (unreported 8 October 2001) [2001] EWCA Civ 1523 as authority that an overpayment was automatically recoverable if the claimant had contributed to it. The claimant appealed to the Upper Tribunal. Held, allowing the appeal, that: 1. it follows clearly from the definition of “overpayment” in regulation 99 of the Housing Benefit Regulations 2006 as “any amount” to which there was no true entitlement that overpaid amounts identifiable as attributable to separate and distinct causes, though comprised in the same total payment or credit as others, may need to be separated out and the causal and other inquiries required by regulation 100 applied to them separately (CH/858/2006 approved) (paragraphs 16 to 18); 2. that approach was not inconsistent with the principle in Sier that causation in this context is concerned with the practical question of what really caused the overpayment in issue to be made: the question of different amounts overpaid from different causes within an overall total was not addressed in that case but the same factual and common-sense approach requires regulation 100 to be applied to such amounts separately (paragraphs 19 to 23); 3. Sier does not stand as authority for any idea that the actual wording of the legislation should be ignored, or treated as if it said “overpayment” rather than “mistake” when or if any question of contribution to an official mistake should come to be considered and the notion of “contributing to” is best kept for the cases where the legislation expressly provides for it, and not allowed to confuse the primary question of the cause of a particular amount having been overpaid (paragraph 24); 4. the decision of the First-tier Tribunal was therefore based on a misunderstanding of the effect of Sier and was erroneous in law (paragraph 26); 5. in the present case the overpayments that resulted from the husband’s weekly earnings being wrongly entered and miscalculated were solely caused by an official error to which the claimant in no way contributed (paragraphs 50 to 54); 6. there must come a point at which a claimant who has provided the correct information is entitled to assume the authority knows what it is doing and it would not have been reasonable to expect the claimant to realise that the benefit the council had confirmed three times as payable, after it had all the right figures, still included an overpayment due to the miscalculation of her husband’s weekly earnings: it followed that regulation 100(2) applied and the amounts overpaid from that cause were not recoverable (paragraphs 58 to 63).
Decision(s) to Download:	CH 2297 2009-00.doc [2010] AACR 27 bv.doc