If it isn’t housing benefit what is it?

I wouldn’t think that the lack of notification would mean that monies paid over could not be classed as ‘benefit.’

Sure late notification (where there was none peviously) may have implications for recovery perhaps.

You’ll probably have to give a bit more detail.

I agree with your analysis Chris.  If it is HB, normal HB related legislation applies.  If it isn’t HB, it is conceivable the LA will actually find it easier to recover under common law provisions unless you can raise some form of estoppel argument.

There may also be a sub-argument to the decision / no decision issue.  Can it really be said that the LA hasn’t made a decision?  If payment has been made via the HB computer system, it strikes me that it IS HB.  That then leaves the issue of notification and brings it right into the realms of bog standard arguments.

If there was no notification at all, any decision is of no effect (Anufrijeva).  However, that doesn’t preclude the LA from simply issuing notifications in order to remedy that omission.  If, in sequence, the LA THEN reissued further o/p notifs, I think it is highly unlikely a UT would find the payments were other than by way of HB.

I’m assuming that all the normal “official error” arguments are taken as read if relevant.

A little more detail.  The council issued no notifications to anybody at any time and did not properly verify the claim properly, so if it was a payment of HB then it is clearly official error. The council agrees this.  They say that because the claimant was not notified they could not have realised that they were being overpaid. (which is possibly true).  However they argue that the landlord should have known since they were more experienced in claims-(which is debateable)  The first notification sent out was the overpayment notification

The councils says that the Arwatife rule applies in that the position of the landlord was not seriously prejudiced.  I think I can argue that it was, since they became the only possible targets for revovery.  So the defect makes the (non)notification, and therefore the decision, arguably null.

But I don’t want to put that argument if it leads to the tribunal finding it has no jurisdiction and the council then going to the county court on the grounds that the payment was just money, if this will make it easier for them to recover.

I reckon we have to about a 50/50 chance if the issue goest to tribunal, so I guess that the question is whether the odds of a succesful defence in the county court would be higher

Just for completeness, Awaritefe covers different ground to Anufrijeva.

The LA conveniently overlooks that, if Anufrijeva is followed (it is afterall merely a House of Lords judgement :)), the AWARDING “decision” is of no legal effect until it is notified.  Awaritefe covers cases where notifications have been issued; not cases where there has been no notification at all.  And, in any case, even if the same ground and principles had been covered, Anufrijeva would override Awaritefe (HL v CA).

For context, Anufrijeva was considered in C10/07-08(HB) - a Northern Ireland case (uploaded).  In my view, it supports the content of my previous post.  Until / unless the LA notifies the AWARDING decision, it has no effect in law.  Until it has effect, there can be no o/p under HB/CTB legislation because there is no effective awarding decision to revise / supersede.  In other words, you can’t revise / supersede a “decision” that has yet to have legal effect.

NB 1:  In C10/07-08, leave has apparently been sought to go the Court of Appeal (I don’t know any more).

NB 2:  Northern Ireland decisions should normally be followed in GB and vice-versa (R(IS) 1/90 & C1/03-04(HB).

I agree with Kevin, but would add that in my view Aweritefe cannot apply because in the present case we are not looking at minor defects in a decision notice, there was no notice issued at all.

What is more I think you can also rely on the old case of Warwick District Council v Freeman as it seems to me that there is no overpayment recoverable from anyone until the proper decisions are made and notified.

If the proper entitlement notices are then issued in the way Kevin suggests, the LA must then issue a recoverability decision that complies with the requirements of para 60 of R(H)6/06.

There is still no overpayment recoverable from anyone until this is done (see also CH/3744/2006 and CH/2298/2007)

Is it HB?

Reg 99 defines an overpayment as:

“any amount which has been paid by way of housing benefit and to which there was no entitlement under these Regulations (whether
on the initial decision as subsequently revised or superseded or further revised or superseded) and includes any amount paid on account under regulation 93 (payment on account of a rent allowance) which is in excess of the entitlement to housing
benefit as subsequently decided.”

Note the phrase “whether on the initial decision ....”.  This means that a (wrongful ) payment made outside the terms of the initial decision, or a payment made where the initial decision was of no effect because it has not been notified, is still an overpayment of housing benefit.

In CH/0765/2008 a payment of housing benefit to the wrong person, in terms of the decision that was effective at the time was hled to be an overpayment.  Upper Tribunal Judge Turnbull held at paras 16-16

” 15     In its submission in reply in this appeal the Council states that “there cannot, therefore, be a second payment of Housing Benefit for a period that entitlement has already been correctly determined and paid.” However, the point is that benefit was not correctly paid in accordance with the decision of 9 May 2007. The Council’s submissions in this appeal in my judgment ignore the fact that the identity of the person to whom benefit was to be paid was an integral part of the decision (as indeed Mr Commissioner Jacobs made clear in paras. 36 and 37 of R(H) 2/08).

16.  Although it is not a matter which was within the jurisdiction of the Tribunal (or is within my jurisdiction), it is in my judgment clear that the amount paid to the Claimant was an “overpayment” within the definition in reg. 99 of the 2006 Regulations. Whether that overpayment is recoverable under reg. 100 would seem to depend on whether the Claimant could reasonably have been expected to realise that it was an overpayment”

Mr Deputy Commissioner Poynter as he then was held at para 14 of CH/3736/2006

“14   There will be overpayment cases where no revision or supersession is necessary. Examples will include:
          (a)  cases where benefit has been correctly awarded but a clerical or computer error has resulted in payment at a rate in excess of that awarded; or

(b)  cases in which payments on account have been made under regulation 91 or 91A of the HB Regulations before there has been a decision on entitlement and it is therefore possible to determine whether or not benefit has been overpaid by reference to the original entitlement decision.

It is to such cases that regulation 98 of the HB Regulations is referring when it contemplates that there might be an overpayment “on the initial decision”. Such cases are relatively rare. .......”

I don’t think there is much chance of the LA succeeding in bringing an action in the county court, because it is now well established that social security law supersedes common law here (See R(CPAG) v Secretary of State CA 14 Oct 2009)

I think I may have confused people here.  The overpayment notice was correctly issued.  What was missing, and has still not been issued, is the original decision awarding benefit in the first place.  The tribunal judge is raising the issue that the money (overp) paid may not have been benefit at all.

Any further thoughts?

If there was money paid arising from a claim then there was a decsion to award benefit. Its benefit.

If there was money paid and no claim was made then its just money.

chris smith - 16 July 2010 09:39 AM

I think I may have confused people here.  The overpayment notice was correctly issued.  What was missing, and has still not been issued, is the original decision awarding benefit in the first place.  The tribunal judge is raising the issue that the money (overp) paid may not have been benefit at all.

Any further thoughts?

Anufrijeva is surely the appropriate authority.  In short, no notification = decision of no legal effect.

However, that doesn’t prevent the LA from retrospectively making good that omission.

Kevin D - 16 July 2010 10:00 AM

chris smith - 16 July 2010 09:39 AM

I think I may have confused people here.  The overpayment notice was correctly issued.  What was missing, and has still not been issued, is the original decision awarding benefit in the first place.  The tribunal judge is raising the issue that the money (overp) paid may not have been benefit at all.

Any further thoughts?

Anufrijeva is surely the appropriate authority.  In short, no notification = decision of no legal effect.

However, that doesn’t prevent the LA from retrospectively making good that omission.

... and when they rectify it, (they have to, to make the OP decision other wise there can’t be a valid original decision to revise or supersede)  the OP is highly likely to be irrecoverable…...or at least I can’t think of one where it would be recoverable at the moment.

The just money argument sounds like the wrong tree to me.

John Birks - 16 July 2010 10:08 AM

... and when they rectify it, (they have to, to make the OP decision other wise there can’t be a valid original decision to revise or supersede)  the OP is highly likely to be irrecoverable…...or at least I can’t think of one where it would be recoverable at the moment.

The just money argument sounds like the wrong tree to me.

The following assumes the monies are ultimately counted as HB and that any omissions are made good.  So far, Chris hasn’t given any indication of either the cause of the overpayment, nor whether the LL is a legitimate target under HBR 101.  Therefore, it isn’t possible (yet) to arrive at any conclusion (one way or the other) as to whether the o/p was caused by an error nor, if it was by way of an error, whether it is nevertheless recoverable anyway.  There is nothing (yet) to suggest the failure to notify caused the overpayment (even assuming the FtT accepts there was indeed no notification).

If the payments turn out to be non-HB, there are still estoppel arguments potentially open to Chris’s client.  But, only he has the facts.

I know I may sound a bit thick but why would the LA pursue someone through to Social Security tribunal if it wasn’t as the result of a claim for benefit?

Does that make me sound stupid?

I think the whole thing seems to be made more complicated than it actually is.

John Birks - 16 July 2010 12:21 PM

I know I may sound a bit thick but why would the LA pursue someone through to Social Security tribunal if it wasn’t as the result of a claim for benefit?

Does that make me sound stupid?

I think the whole thing seems to be made more complicated than it actually is.

*laughs*  No, you don’t sound stupid at all John.  In answer to your question, most LAs (based on my experience) wouldn’t have a clue about the potential for paying monies that are not legally HB.  Taking Chris’s info at face value, the fact the LA simply says “no prejudice” was caused already indicates the LA hasn’t exactly got a handle on the law in cases where there is no notification at all - either that or the LA was being deliberately selective (in which case FtT rule 2 was breached).

I think the issues are technical rather than complicated.  The first issue to sort out is whether or not it’s legally benefit.  If so, all the usual HB considerations are up for grabs.  If it’s not HB, then it’s a common law matter (outside the framework of benefits and beyond the jurisdiction of the Tribunal system).

As an aside, there is a case that made it to Cmmrs where monies were paid that did not count as HB/CTB - see CH/0269/2006.

Thanks for all the comments.  I’m sorry I’ve been a bit vague about the detail.  If I go into much more the case is potentially identifyable.