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First Tier Tribunal decision
I have just started assisting a single man following his housing benefit overpayment appeal. He was not represented and he lost his case.
Although the tribunal refused the overpayment appeal, the Decision Notice stated that the council needed to recalculate the overpayment - which would result in new appeal rights. This was because the tribunal did not agree with some of the figures provided by the council.
However, the council are saying that they had already recalculated the overpayment before the appeal and they had reduced the overpayment. They say they notified the tribunal before the hearing. Consequently, the council are not willing to recalculate the overpayment. (They may agree to reissue the same decision notice which would give new appeal rights.)
Should this be a complaint to the council or should the court take action to ensure the council recalculate?
It sounds to me like the Tribunal’s decision was defective and ought to be set aside.
Referring to the calculation of the overpayment must mean that the calculation was either an issue raised by the appeal or the Tribunal exercised its s12 discretion to consider the issue anyway.
If the Tribunal considered the issue, then the parties were entitled to have the matter dealt with fully and fairly. That includes providing the appropriate remedy.
The appropriate remedy where an overpayment is wrongly calculated is not for the Tribunal to uphold the decision whilst inviting the original decision maker to look at it again. The appropriate remedy is for the decision to be set aside and either remitted for recalculation or for the Tribunal to conduct its own calculations.
If the Tribunal had done this, then this situation would have been avoided as the Council would have needed to make a new decision if it wanted to get its money back.
That’s my thoughts on it anyway…
Also sounds like the decision was revised in the claimant’s favour before the hearing, so the appeal should have lapsed. That’s another reason why the decision should be set aside.
I think the route to go down here is applying for the Tribunal’s decision to be set aside on the grounds of a procedural irregularity, and at the same time submitting an appeal to the Council against the new revised decision, explaining that it is out of time (if it is) because of the Tribunal’s delay/failure to recognise that the appeal should lapse
Also sounds like the decision was revised in the claimant’s favour before the hearing, so the appeal should have lapsed. That’s another reason why the decision should be set aside.
I think the route to go down here is applying for the Tribunal’s decision to be set aside on the grounds of a procedural irregularity, and at the same time submitting an appeal to the Council against the new revised decision, explaining that it is out of time (if it is) because of the Tribunal’s delay/failure to recognise that the appeal should lapse
Thank you both for your very helpful replies.