THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The claimant’s appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal given at Kirkcaldy on 22 September 2014 involved errors on points of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraphs 27 to 29 below and any further procedural directions given by a judge of the First-tier Tribunal.

REASONS FOR DECISION

1.	The claimant appeals against the decision of the First-tier Tribunal of 22 September 2014 with the permission of Upper Tribunal Judge May QC given on 3 December 2014. The local authority’s submission dated 9 January 2015 stated that it supported the appeal on a ground that I shall explore to some extent below, but suggested that the decision should be re-made by the Upper Tribunal in the same terms as those set out in the corrected decision notice signed on 3 October 2014. In his reply the claimant requested an oral hearing. That request was refused by a Registrar on 20 January 2015. The refusal was confirmed by Judge May on 27 January 2015 following the claimant’s further request. On the view that I take of this case I am satisfied that a decision can properly and in accordance with the interests of justice be made by the Upper Tribunal without a hearing.

The background

2.	The appeal that was before the tribunal of 22 September 2014 was against the decision notified in the local authority’s letter dated 24 January 2014 (pages 40 and 41 of the papers). The letter was addressed to the claimant’s wife, but it appears that there is no objection to its being treated as notification to the claimant himself. The appeal was made in the claimant’s letter dated 26 January 2014 (page 43). That was the only appeal before the tribunal of 22 September 2014. The tribunal had no power in the course of that appeal to consider any appeal against decisions of the Secretary of State for Work and Pensions on the entitlement of the claimant and his wife to employment and support allowance (ESA). But that does not necessarily mean that questions of the rightness or wrongness of such decisions could not have been relevant to the housing benefit and council tax benefit appeal that was before the tribunal (see paragraphs 17 to 26 below).

3.	The letter of 24 January 2014 was as follows, under the heading “Housing Benefits and Council Tax Reduction – Statement of reasons”:

	“I am writing to inform you of a change in your entitlement to Housing Benefits and Council Tax Reduction and also a reassessment of your previous entitlement to Council Tax Benefits up to 31 March 2013.

	I can confirm that due to your partner’s [ie the claimant’s] income from 2 annuities from the Prudential, which were previously undeclared and have been in payment since 4 April 2008, has caused the following changes to your entitlements.

	
		I can also confirm that there are no changes to your applicable amounts or the 	income details already held on the benefits system for the period of the 	overpayment.

The income added to your claim details are an annuity of £50.62 per calendar month from 4 April 2008 to the current date and another annuity of £53.16 which is paid 6 monthly and is also in continuous payment. The payment for the period 4 October 2009 to 3 April 2009 was reduced by taxation to £43.16 which I have taken into account when reassessing your claim.

	An overpayment of Housing Benefits of £2676.82 has been created for the period 14 April 2008 to 26 January 2014 and your current entitlement to Housing Benefits has been reduced from £26.36 per week to £16.53 per week.

	Your current entitlement to Council Tax Reduction has been reduced from £8.49 per week to £5.75 per week for the period 13 May 2013 to 31 March 2014 and your entitlement for the period 1 April 2013 to 12 May 2013 has been reduced from £9.76 per week to £7.02 per week.

	The reassessment of your Council Tax Benefits has resulted in an excess benefit entitlement of £708.31 for the period 1 April 2008 to 31 March 2013.

	The changes to your entitlement to Council Tax Benefits and Council Tax Reduction will result in you being rebilled for the relevant financial years affected by these changes.
	
	I have also enclosed a breakdown of the changes to your entitlement to Housing Benefits and Council Tax Benefits which have occurred due to the reassessment of your claim.”

A schedule of the reduced entitlements throughout the period from April 2008 was attached. There was no other evidence in the papers of the terms of the decision notified in the letter.

4.	The decision was the product of a period of investigation following a visit by the claimant to a local authority office on 21 October 2013 to discuss a problem over what sort of ESA he was receiving. In the course of the conversation he mentioned a private pension and the officer typed up a letter for him to sign setting out his and his wife’s income, in which he included a private pension of £50 per month. The claimant was apparently encouraged to supply evidence of his pension income. On 25 October 2013 the claimant produced a letter from the Prudential dated 29 March 2009 stating the amount of an annuity payment due from 4 April 2009 as £53.16 gross each half-year, £43.16 after deduction of income tax, but said that he had disposed of later letters. At some point a Citizens Advice Bureau representative passed on the information that the claimant wanted his benefit suspended so as not to incur an overpayment. On 4 November 2013 the local authority wrote to the claimant (pages 22 and 23) making some points on the ESA question, but also saying that it was unable currently to make any award of housing benefit or council tax reduction and had:

	“suspended those payments as you have suggested. This is due to the fact that you have for the first time notified us of a Prudential pension; where payments have been received by you since at least March 2009. This income has to be considered when we assess your entitlement and the financial assistance towards any housing costs and Council Tax liability. We have written to the pension provider for further details of this income. This will likely result in an overpayment of housing benefit and Council Tax benefit/reduction; and will be recoverable as you failed to declare you were in receipt of this income.”

Internal local authority notes (page 26) confirmed that “the claim continues to be suspended” until verification of the Prudential annuity. A letter dated 19 November 2013 to the claimant’s MP (pages 28 and 29) said the same, but also that the local authority was prepared to make discretionary housing payments to the claimant to meet any rent shortfall due to the social size criteria legislation. The information was received from the Prudential on 21 January 2014 showing the payment of the two flat-rate annuities as set out in the letter of 24 January 2014. There had also been a payment to the claimant on 24 April 2008 of a tax-free lump sum of £3,863.13.

5.	I should say at this point that the claimant maintains that he had informed the local authority of the receipt of the two annuities in 2008, but the tribunal of 22 September 2014 did not accept that he had.

6.	The local authority’s written submission to the First-tier Tribunal described the decision under appeal as a supersession of the awards of housing benefit and council tax benefit on the ground of a relevant change of circumstances (beginning to receive the annuity payments), resulting in the totals of overpaid benefit being as identified, and for the same periods, as stated in the letter of 24 January 2014. It was then stated that, as the local authority had not previously been notified of that income, the resultant overpayments were deemed to be recoverable. However, in section 7 of the submission the tribunal was asked to decide whether an overpayment of housing benefit of £1915.21 for the period from 11 June 2012 to 1 November 2013 and excess council tax benefit of £333.14 for the period from 11 June 2012 to 31 March 2013 was recoverable from the claimant. There was no explanation given of why the start of the period of the recoverable overpayment was said to be 11 June 2012 rather than April 2008 or of why the end of the period of the recoverable housing benefit overpayment was said to be 1 November 2013 rather than 26 January 2014. One obvious explanation of the latter might have been that, because of the suspension of payment, no overpayments had in fact been made to the claimant after 1 November 2013.

7.	Following a first hearing on 8 July 2014, which was adjourned to give the claimant the opportunity to produce copies of receipts he held for documents produced to the local authority between April and October 2008, the local authority faxed an additional submission to the tribunal on 13 September 2014. This dealt with several issues, but stated that there had been an error in section 7 of the original written submission and that the correct amounts and periods of the overpayment of housing benefit and excess council tax benefit were as stated in the letter of 24 January 2014, except that the excess council tax benefit amounted to £705.56 rather than £708.31. No explanation was given of how the error arose or of why the new figures were the right ones.

The tribunal’s decision

8.	The hearing took place on 22 September 2014. A dispute arose because the claimant refused to accept that his appeal was not against the determinations of his and his wife’s entitlements to ESA. He was asked to leave the hearing, having been told that a decision would then be made in his absence. He did so.

9.	The tribunal disallowed the appeal, confirmed the decisions of 24 January 2014 and found the housing benefit overpayment and excess council tax as set out in the additional submission of 13 September 2014 to be recoverable from the claimant.

Did the tribunal go wrong in law?

Jurisdiction to make an overpayment recoverability decision?

10.	I see three problems with the tribunal’s decision before getting to any of the claimant’s contentions about the case. The first is that there is considerable doubt whether the local authority ever made a decision that an overpayment of housing benefit and excess council benefit was recoverable from the claimant under section 75 and 76 of the Social Security Administration Act 1992 and the relevant parts of the Housing Benefit Regulations 2006 and the Council Tax Benefit Regulations 2006. There was clear evidence of a properly carried out supersession decision, the effect of which was that amounts of benefit had been paid in excess of the newly calculated entitlements, which were then identified in terms of amount and period. However, there is nothing in the papers to show specifically that the local authority took the further step of making a decision about recoverability using the powers just mentioned. There is a suspicion that it was just assumed that the housing benefit overpayment and the excess council tax benefit could be recovered from the claimant. However, it may be that the reference to the “rebilling” of council tax was evidence of some recoverability decision in relation to council tax benefit/council tax reduction.

11.	It might then be thought that the only decision that the tribunal had power to adjudicate on was whether the past decisions should be superseded and what the claimant’s entitlement to housing benefit and council tax benefit was in the period from April 2008 down to January 2014 and onwards and what amount of benefit had in consequence been overpaid. It would then follow that the tribunal had no jurisdiction to rule that the housing benefit overpayment and the excess council tax benefit was recoverable from the claimant. The result would have been that it would have remained open to the local authority to make a recoverability decision based on the supersession decision of 24 January 2014. However, I do not consider that such an approach is the correct one in law. The general principle on the 
powers of First-tier Tribunals is that they “stand in the shoes” of the maker of the decision under appeal, in the sense that they can make any decision that could have been made by the decision-maker on the questions before him. That can include the correction of errors and omissions in the decision under appeal. This is not the place for any extended or technical legal discussion, but those general principles were authoritatively confirmed in Social Security Commissioners’ decision R(IB) 2/04. The question of whether a housing benefit overpayment or excess council tax benefit is recoverable from a claimant or anyone else is very closely linked to the questions of whether previous decisions have been revised or superseded so as to produce an overpayment or a calculation of excess council tax benefit. The recoverability question is often dealt with together with the other questions in one “rolled-up” decision. In my judgment, it would be open to a First-tier Tribunal in circumstances like those of the present case, and within its powers in law, to deal with the overpayment recoverability question even though that had not been covered by the decision under appeal.

12.	The main control on the use of such a power by a tribunal is the principle of natural justice that any party to an appeal must have a fair opportunity to make their case. If, for instance, there had previously been no mention of the recoverability or otherwise of an overpayment, a tribunal at a hearing could not simply announce that it was going to decide that question and proceed to do so. The claimant, and for that matter the local authority or the Secretary of State in other benefit cases, would have to be given a fair opportunity to consider the issue after it had been put to them, to take advice and to put forward submissions and/or evidence. That would in most cases involve an adjournment. However, that was not the state of things in the present case. The question of the recoverability of the housing benefit overpayment and the excess council tax benefit had been extensively discussed in the local authority’s written submissions, which were made on the assumption that that question was part of the appeal. The claimant had been fully alerted to the issues arising and had had a fair opportunity to put forward his case on those issues.

13.	Accordingly, I conclude that the tribunal of 22 September 2014 did not exceed its jurisdiction in making decisions on the recoverability of the housing benefit overpayment and the excess council tax benefit. It should in my view have expressly explained in its statement of reasons how it had power in law to do so. The failure to give that explanation was an error of law. If that had been the only error of law, I would have hesitated to set aside the tribunal’s decision. However, as I find other errors, that difficulty does not arise.

Was benefit paid for the period from 2 November 2013 onwards?

14.	The second problem with the tribunal’s decision is this. The evidence identified in paragraph 4 strongly suggests that payments of housing benefit and council tax reduction (however that works) were suspended, either in whole or in part, pending receipt of the verification of the annuity payments from the Prudential. If there was a suspension of payment it is very hard to believe that that suspension would have been lifted after the details were received in respect of the period prior to 21 January 2014 so as to pay benefit of an amount in excess of the entitlement determined in the decision of 24 January 2014. In addition, the suspension of payment of benefit might supply an explanation of why in section 7 of the local authority’s written submission to the First-tier Tribunal the recoverable housing benefit overpayment sought was limited to the period down to 1 November 2013. All in all, the state of the evidence before the tribunal of 22 September 2014 was such that in my judgment the tribunal could not properly proceed to confirm the recoverability of the housing benefit overpayment for the period from 2 November 2013 to 26 January 2014 without seeking some further evidence from the local authority that the amount of benefit whose recovery was sought had actually been paid to the claimant. There was an error of law in the tribunal’s reaching its decision without seeking that evidence. I have restricted this point to housing benefit because the recovery of excess council tax benefit/council tax reduction sought has throughout been restricted to the period down to 31 March 2013. I do not pretend to understand, and have not investigated, how liability for council tax subject to the reduction regime is affected where circumstances like those in the present case arise during the course of a financial year or whether there can in practice be a “suspension” of the effect on a claimant’s liability. However, that is something that may need to be looked at in the rehearing that I have directed.

Did the tribunal adequately explain the amount and period of the overpayment found recoverable?

15.	The third problem with the tribunal’s decision, closely linked with the second, is this. On the assumption that it was shown that the existing amount of housing benefit (and possibly council tax reduction) continued actually to be paid to the claimant after 1 November 2013, the claimant was entitled to an explanation from the tribunal of why the latest submission from the local authority about the amount and period of the recoverable overpayment was accepted in preference to that in section 7 of the written submission. The claimant was also entitled to an explanation of how the terms of the legislation on “official error” applied for the period after 1 November 2013. From 21 or 25 October 2013 the local authority had reasonable evidence of the claimant’s current receipt at least of a monthly annuity payment in the region of £50 and of the existence of another half-yearly payment. The claimant had asked for the suspension of payment and the local authority had told him and his MP that payment had been suspended. If, in those circumstances, full payment in fact continued to be made, there would be a strong argument that any consequent overpayment for that period was caused by the local authority’s official error, not contributed to by the claimant. However, that would not automatically mean that the overpayment was not recoverable from whatever date the suspension ought reasonably to have been imposed. If the claimant could reasonably have been expected to realise at the time of receiving those payments that they included an overpayment, the overpayment would still be legally recoverable from him (Housing Benefit Regulations 2006, regulation 100(1)). Thus, if 

the tribunal’s apparent assumption about what the claimant had been paid was right, there was nevertheless an error of law in failing to explain the basis of the recoverability of the housing benefit overpayment for the period after the claimant’s disclosure of receipt of the monthly payment and production of the 2009 Prudential letter.

16.	Accordingly, the errors of law involved in the second and third problems on their own justify the setting aside of the decision of the tribunal of 22 September 2014 and the remission of the case for a rehearing with the opportunity for the production of additional evidence.

The claimant’s arguments on ESA and the interpretation of paragraph 4 of Schedule 5 to the Housing Benefit Regulations 2006

17.	There remain the claimant’s arguments about the relevance of his and his wife’s entitlements to ESA. I must be careful to limit what I say about those arguments. Since the case is to be referred to a new tribunal, which will take its own independent view of the evidence and the facts, nothing that I say must be taken as impinging on the new tribunal’s power and duty to exercise its own judgment in deciding the facts. But I attempt below to set out some of the legal principles applicable in the circumstances of the present case as far as they are known.

18.	I have already said in paragraph 2 above that the tribunal had no jurisdiction to decide any appeal against a decision of the Secretary of State on entitlement to ESA. That is a matter of law.

19.	It is also a matter of law to say that I agree with the local authority that the tribunal of 22 September 2014 went too far in saying in paragraph 2 of the statement of reasons that the question of whether the claimant and his wife should have been receiving income-related or contributory ESA was irrelevant to the decision under appeal. The tribunal erred in law by not adopting the approach set out below. The primary decision under appeal was the supersession of the existing decisions on the ground of the relevant change of circumstances in the form of starting to receive the annuity payments, with a consequent reduction in the amount of entitlement from April 2009 onwards. But receipt of the annuity payments would have had no effect on the amount of entitlement for any weeks in that period in which either the claimant or his wife were “on” income-related ESA.

20.	That follows from, in the present case, paragraph 4 of Schedule 5 to the Housing Benefit Regulations 2006 (as amended with effect from 28 October 2013 to accommodate universal credit), which lists cases where income other than earnings is to be disregarded:

	“4. Where a claimant is on universal credit, income support, an income-based jobseeker’s allowance or an income-related employment and support allowance the whole of his income.”

Regulation 25(1) provides that the income and capital of a claimant’s partner are to be treated as the income and capital of the claimant and that references in the Regulations to “the claimant” include the claimant’s partner. Then regulation 2(3A) provides:

	“(3A) For the purposes of these Regulations, a person is on an income-related employment and support allowance on any day in respect of which an income-related employment and support allowance is payable to him and on any day —

 (a)	in respect of which he satisfies the conditions for entitlement to an income-related employment and support allowance but where the allowance is not paid in accordance with section 18 of the Welfare Reform Act [2007] (disqualification); or

 (b)	which is a waiting day for the purposes of paragraph 2 of Schedule 2 to that Act and which falls immediately before a day in respect of which an income-related employment and support allowance is payable to him or would be payable but for section 18 of that Act.”

Sub-paragraphs (a) and (b) of regulation 2(3A) are not relevant in the present case. There are equivalent provisions in Schedule 4 on the disregard of earnings and in the Council Tax Benefit Regulations 2006.

21.	Thus, a person is for housing benefit and council tax benefit purposes to be treated as having no income, regardless of what income is actually being received, for any day in respect of which income-related ESA is “payable”. The test is not whether the income-related ESA was actually paid for the day in question, but whether it was “payable”. Upper Tribunal Judge Wikeley has helpfully explored the distinction between those tests in decision JF v Secretary of State for Work and Pensions and DB (CSM) [2014] AACR 3. That decision was about a provision in the child support legislation, but the general principles can apply to benefits legislation, subject always to the overriding necessity to look at the particular context of the use of the word “payable”. Although sometimes “payable” can mean paid or payable under an award of benefit, whether right or wrong, Judge Wikeley’s view was that the ordinary meaning of the word suggests that there must be some underlying entitlement. Thus, often “payable” will mean “properly or lawfully payable”, as he held that it meant in the child support legislation he was considering.

22.	The difference between “paid” and “payable” may become clearer when considering how paragraph 4 of Schedule 5 might apply to circumstances that arose in relation to the claimant’s wife in the present case. On 2 May 2013 the local authority was notified by the Department for Work and Pensions that she had been awarded income-based ESA with effect from 7 May 2013 (see page 1 of the papers). In accordance with the rules described above (there being nothing at that point to alert the local authority to the possibility that that award might be mistaken), a supersession was carried out to increase the claimant’s award of housing benefit and council tax reduction to what would be paid with an income of nil. However, it appears (see pages 26 and 28) that the award of income-related ESA was based on a mistake, failing to take into account the claimant’s receipt of contributory ESA (which was paid clerically so for some reason not showing up on computer records) and that on the circumstances as they actually were the claimant’s wife should never have been awarded the income-related ESA. The situation was corrected by the DWP in decisions notified in the letter to the claimant’s wife dated 3 October 2013 (pages 5 to 7). The first page of the letter notified her of the rate of her ESA award with effect from 27 August 2013, stating that the assessment was based on her National Insurance contribution record. The necessary implication (though why this could not have been plainly stated in so many words I do not know) was that the award to her from that date was of contributory ESA. The third page on page 7 (which appears to be part of the same letter, but may be from a different one) set out the amounts of ESA applicable to the claimant’s wife from 14 May 2013 to 26 August 2013.

23.	The calculation of the amounts was set out in what seems to me a most confusing way (although that may in itself reflect the convoluted structure of section 6 of the Welfare Reform Act 2007, which deals with the amount payable where a person meets the conditions of entitlement to both forms of ESA). In the present case the income-related ESA calculation rules, because the person’s own contributory ESA entitlement does not come into the calculation, would have produced an amount of £62.50. But the prescribed amounts for entitlement to contributory ESA (technically called “the personal rate”) came to £106.50. Then section 6(3) says that the amount of ESA payable is to be the greater of the personal rate and the income-related calculation. Section 6(4) says that if that amount is no higher than  the personal rate  then it  is  to  be attributed to  the entitlement to contributory ESA,  ie 

there is no element of benefit payable as income-related ESA. Thus when the calculation on page 7 stated “because you are entitled to contribution based Employment and Support Allowance we will pay you £106.50” it was reflecting the rule in section 6(4). The legal position was that there had been a decision that for the period from 14 May 2013 to 26 August 2013 the weekly amount of ESA which the claimant’s wife was entitled to be paid was £106.50 and that amount contained no element attributable to entitlement to income-related ESA. Even though page 7 did not make that conclusion at all clear, that was the legal position.

24.	Going on to apply paragraph 4 of Schedule 5 to the Housing Benefit Regulations 2006 produces the following results. Throughout the period from 14 May 2013 to 26 August 2013 the claimant’s wife was actually paid income-related ESA. Even after the position was retrospectively corrected by the DWP decision notified in the letter of 3 October 2013 (so creating an overpayment of ESA that was written off), that could not change. The actual payment had been made. So if “payable” in paragraph 4 of Schedule 5 read with the definition in regulation 2(3A) means “actually paid under an award whether right or wrong” the claimant would have remained entitled to the full amount of housing benefit and council tax reduction throughout that period and taking into account the receipt of the annuity payments in that period would have made no difference to that outcome. Throughout that period he would have been deemed to have income of nil. However, if “payable” means “properly or lawfully payable”, the position would be different. Within the period from 14 May 2013 to 26 October 2013 a housing benefit/council tax reduction decision-maker or a tribunal could, if provided with sufficient evidence that the DWP award of income-related ESA was based on a mistake, have properly decided that income-related ESA was not payable, so that the condition in paragraph 4 of Schedule 5 was not met, even if the DWP had not yet altered the award. After the DWP had altered the award on 3 October 2013, a housing benefit/council tax reduction decision-maker or tribunal looking back at the period from 14 May 2013 to 26 October 2013 retrospectively, could not, unless there was something to suggest that that decision to alter the award was itself mistaken, do anything other than operate on the basis that during that period income-related ESA was not “payable” to the claimant’s wife. It would still be open in theory to the decision-maker or tribunal to come to a different conclusion about payability of the income-related ESA, but there would have to be sufficient evidence to support such a conclusion. Here, where there has been a cogent explanation of why the award of income-related ESA to the claimant’s wife was a mistaken blip in an otherwise consistent pattern of an award attributable only to contributory ESA, it is very difficult to see how such evidence could appear.

25.	In my judgment, in view of the choice of the word “payable”, rather than “paid” in the definition of “on income-related employment and support allowance” in regulation 2(3A) of the Housing Benefit Regulations 2006 and in the light of the overall context of the housing benefit and council tax benefit/council tax reduction legislation (and in particular the mechanisms for the retrospective supersession of decisions where decisions on entitlements to other benefits have changed), “payable” there does not mean “actually paid” or “actually paid under an award whether right or wrong”. It means “properly or lawfully paid” or something akin to that. The upshot is that the approach in the second half of paragraph 24 above has to be applied by any decision-maker or tribunal looking at the case as at January 2014. Unless some new evidence were to become available, it has to be concluded that in the period from 14 May 2013 to 26 October 2013 income-related ESA was not payable to the claimant’s wife. Therefore, the disregard of income in paragraph 4 of Schedule 5 to the Housing Benefit Regulations 2006 (and the equivalent council tax benefit/council tax reduction provisions) cannot be triggered by the payments to her under the subsequently removed award.

26.	That situation was factually relatively straightforward, although requiring the unpacking of some complicated and technical legal rules. What is much more difficult to assess as a matter of evidence and fact is the claimant’s assertion that for some or all of the period in question during which he was receiving ESA income-related ESA must be regarded as having been payable to him because contributory ESA was not properly or lawfully payable to him. The consequence being, as he has submitted, that paragraph 4 of Schedule 5 to the Housing Benefits Regulations (and the equivalent provisions) means that he must be regarded for housing benefit etc purposes as having income of nil. As a matter of law the new tribunal that conducts the rehearing must, because of the meaning I have given above to the word “payable”, take on board the question of whether income-related ESA was at any relevant time properly or lawfully payable to the claimant. The evaluation of the evidence that he has (or might before the rehearing produce) must be for the judgment of the new tribunal and it is here in particular that I must not be taken as suggesting any direction as to the exercise of that judgment. I say only this. It seems to me that the documents produced by the claimant showing the working out of his ESA from 11 May 2013 and from 11 April 2014, no doubt originally attached to award letters (copied several times in the papers, but most legibly at pages 317 and 318) are further examples of printed forms that may make sense to those who devised them or complete them on a day-to-day basis, but present information in a most confusing and almost baffling way that is very difficult for any ordinary person to follow.

Conclusion and directions to the new tribunal

27.	For the reasons given in paragraphs 13 to 15 and 19 above, the decision of the tribunal of 22 September 2014 is set aside as involving errors on points of law. The claimant’s appeal against the local authority’s decision notified on 24 January 2014 is remitted to a new First-tier Tribunal for rehearing. Neither of the judges who constituted the tribunals of 2 July 2014 and 22 September 2014 is to constitute the new tribunal that reconsiders the claimant’s appeal. There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new tribunal, which will not be bound in any way by any findings made or conclusions expressed by the tribunal of 22 September 2014.
28.	In advance of the rehearing, the local authority is to make a further written submission, accompanied by the best available documentary evidence, (a) as to whether the local authority ever made a specific housing benefit overpayment and excess council tax benefit/council tax reduction recoverability decision and the consequences if not (in the light of what is said in paragraphs 10 to 13 above); (b) as to what benefits were actually paid to the claimant in the period from late October 2013 to 26 January 2014 and were thus susceptible to recovery (in the light of what  is  said in paragraph 14 above);  (c)  by way of explanation of the changes in the 

amounts said to be recoverable and the periods covered as between the first written submission to the First-tier Tribunal and the submission of 13 September 2014 and clarification of what is now sought by the local authority (in the light of what is said in paragraphs 6 and 15 above); (d) as to any other issues considered relevant. The judge of the First-tier Tribunal who considers the arrangements for the rehearing may wish to consider directing a time-limit for the production of that further submission, which is then to be sent to the claimant in advance of the rehearing.
29.	The new tribunal is to follow and apply the rulings of law made above, in particular on the interpretation of paragraph 4 of Schedule 5 to the Housing Benefit Regulations 2006. The evaluation of all the evidence will be entirely a matter for the judgment of the new tribunal. The decision on the facts in this case is still open.

	(Signed)
J  MESHER
Judge of the Upper Tribunal
Date:  13 February 2015