Upper Tribunal decision seems to have a basic flaw.

I am in a bit of a quandary and would appreciate some advice.

Have just received an upper tribunal decision. It’s the first time I have seen a flaw in a UT decision (had a few that that I found irritating but they were always impeccably reasoned and didn’t have any error of law that I could see).

The appeal was concerning a supersession of Housing Benefit and the dispute was whether the eligible rent was correctly assessed under reg 12.  There were 2 joint tenants and although reg12 stipilates that eligible rent has to be apportioned “having regard to all the circumstances….” There were in fact very unusual circumstances, arguably persuasive for a 100% to 0% apportionment but the LA ignored these and went for the straight 50 /50.

As a consequence of the supersession, overpayments arose which the LA said were recoverable becaused there had been no official error.

The upper tribunal judge has given a decision regarding the overpayment that there was an official error and imposing a new decision that the HB overpayment was not recoverable. In the reasoning, most if not all, of the “special circumstances” relied on on by the appellant were accepted by the judge.

The problem is that the judgement does not even mention the supersession decision (except that it gave rise to the overpayment). If this part of the appeal had been found in the appellant’s favour, there would of course have been no overpayment.

I’ve checked the case papers and the lower tribunal reasons clearly show both the supersession and overpayment were in the LT decision. My sunmissions went on and on about reg 12 (probably too much!).So, I cannot understand why the supersession dispute isn’t in the UT decision.

Would this be grounds for a set-aside? - If so, could this risk the favourable decision on the overpayment?

Can anyone suggest how best to proceed.

Thanks for the answer - it confirms my fears. I’m simply suprised to get this problem from a UT. I have already drafted out a set aside request and I’m seeing the client tomorrow and give them the options.

What grates is that the decision on the overpayment is so favourable and I’m asking for it to be set aside - but the other side of the coin is that winning the supersession / entitlement decision would be more valuable - so we will have to see how it goes.

Bear in mind, as you are probably aware, that any identifiable error of law has to be a material one and not just a technical one.

sorry I come late to this discussion but I don’t see what would be more faourable about winning the case on the revision/ supersession route unless you were saying that ongoing benefit would be reinstated or some such. If the only question is the overpayment what is the point of the apllication for set aside which clearly risks risks losing what been won. Once set aside it might go before a different judge. In the absence of any advantage to the client just leave the tree lying where it has fallen

I have to say that I was thinking much the same thing Chris, but its been so long since I did casework and tribunals, that I wasn’‘t sure whether I was missing something.

On the issue of the accuracy of UTJs (and formerly CDs), it’s my experience there are a surprising number that fall short of the level of accuracy that might be imagined.

In two cases in which I had first hand involvement, there were respectively factual errors and outright omissions.  It’s even arguable that one of the cases could have been successfully appealed to the Court of Appeal, at least to the extent of being remitted for a rehearing.  In the other, the LA’s submission (written by me)  to the then Cmmrs was mildly criticised for failing to address a particular point.  Firstly, the point hadn’t been raised at any point during the proceedings, nor had the LA (or any other party) been invited to comment on it and, frankly and most importantly, the point wasn’t relevant and had no bearing whatsoever on the outcome (found in favour of the LA).

Over the years, I have also discussed other decisions with the relevant LA and it has been clear in some cases that important evidence and/or legal argument has simply not been addressed in the CD/UTD, despite it being plainly relevant.  In one case, the CD/UTD strongly criticised the quality of the notification letter for its failure to included instructions to the clmt.  Well, on the face of it, nothing new there; we all know that poor notifications are rife.  However, the LA is adament that instructions WERE included in the letter - on the reverse AND this was before both the Tribunal (FtT or equivalent) and the Cmmr/UTJ.  In another case, the LA explicitly raised a CA judgment and yet there is no mention of that case, nor the related argument, in the CD/UTD - there is no question it was relevant.

Indeed, there is yet another recent HB/CTB UTD where a particular decision has been reached that would have been very difficult to reach had a hugely relevant Court of Appeal judgment been considered.

In short, in some cases, all is not always as it may seem from the text of CDs/UTDs.

Thanks for all your responses.

I cannot fault any of the reasoning you have given.

The appeal was that firstly the grounds for supersession were not made out. If successful there would of course be no overpayment.

Disputing the OP recovery was a fall back position. ( I did check if I had given too narrow grounds for the UT appeal but on checking both my submissions and the LT statement of reasons, both supersession and OP decisions are clearly appealed).

The supersesion was centred on HB reg 12B(4) [apportionment of eliigible rent where more than one person is liable to pay the rent].
The LA made the supersession on a 50/50 split and my appeal is that due to (rather unusual) special circumstances a 100 to 0 split was more appropriate.

It’s clear from the papers that the LA didn’t take the special circumstances into account but I was always wary that whatever the strength of the case it is in reality a discretion decision so nothing could be taken for granted.

The judge has accepted the special circumstances almost in total but as reasoning for the OP being non recoverable and has simply made no mention of the supersession.