DP v Bolton Council

In these reasons, the Appellant is referred to as ‘DP.

The factual background was set out in the Upper Tribunal’s decision granting DP permission to appeal against the First-tier Tribunal’s decisions, as follows:

“Hearing

1.

A hearing of [DP’s] applications was listed to be heard at Manchester Civil Justice Centre on 19 November 2021. [DP] did not attend the hearing.

2.

[DP] subsequently supplied medical evidence that she was unable to attend the hearing on 19 November 2021 due to an attack of vertigo. I therefore (retrospectively) postponed that hearing.

3.

Since then, at least five attempts have been made by Upper Tribunal staff to contact [DP] in order to ascertain her preferred mode of hearing. None of those attempts were successful. None of the telephone messages left, or letters sent, elicited a response. I also note that [DP] failed to attend both hearings of her appeals before the First-tier Tribunal.

4.

I am satisfied that there is no realistic prospect that [DP] will inform the Upper Tribunal of her preferred mode of hearing or, for that matter, that she will attend a hearing. Her application for permission to appeal will have to be decided on the papers without holding a hearing. I set aside the directions for a hearing of this application given by the Upper Tribunal on 17 March 2021 and 3 March 2022.

Grounds of appeal

5.

[DP’s] written application for permission to appeal argues that the First-tier Tribunal did not consider any of the evidence that she supplied.

6.

[DP] also relies in this application on the application made to the First-tier Tribunal for permission to appeal. In relation to case SC122/19/00648, [DP] argued:

(a)

she received her last ESA payment on 10 March 2018 and has never been advised of an overpayment of ESA;

(b)

the supposed housing benefit overpayment of £336 was not an overpayment at all because she was still entitled to ESA during the relevant period;

(c)

even if there was an ESA error, she could not possibly have known that housing benefit had been overpaid because she received no relevant DWP notification about her ESA.

7.

In relation to case SC122/19/00649, [DP’s] application for permission to appeal argued:

(a)

she was entitled to contributions-based JSA from 30 May 2018 until 1 July 2018, but the DWP mistakenly recorded her claim as having been made on 4 June 2018. The DWP did not respond to her attempts to have the mistake corrected and, some two years later, the matter was before the Independent Case Examiner;

(b)

the Tribunal correctly found that she had no income from 29 May 2018 until 30 June 2018, and that the local authority overlooked her notification that she commenced employment on 2 July 2020. Her housing benefit entitlement from 30 May 2018 to 1 July 2018 was £84 per week, or £386.40. In total, she received five housing benefits amounting to £1,312.20 so it was clearly incorrect to find that she had been overpaid by £1,176;

(c)

her first housing benefit payment of £145.80 was received on 27 June 2018 and it was obvious that she was owed “back HB”. At the same time, she was also expecting payments of “back JSA”. Her next payment was for £291.60, rather than the expected £336, and so she did not know if this was “in relation to back paid JSA, HB or a combination of the two given that credits had been made to my account from a number of different payees during the period”;

(d)

in the light of the matters described above, in conjunction with a plethora of DWP errors, “I do not think I could reasonably be expected to know what was going on”. In other words, she could not reasonably have been expected to know that she was overpaid housing benefit.

The First-tier Tribunal’s decisions

8.

The Tribunal’s decision notices record that a hearing of [DP’s] appeals against the local authority’s decisions was listed but that [DP] failed to appear.

SC 122/19/00648

9.

The Tribunal’s statement of reasons for appeal ref. SC 122/19/00648 included the following findings:

(a)

[DP] applied for housing benefit on 30 July 2017 “because she was claiming contribution based ESA”. The local authority awarded housing benefit from 30 July 2017;

(b)

on 20 March 2018 the DWP informed the local authority that [DP’s] ESA ended on 13 February 2018 “as the appellant had failed to attend her assessment”. DWP records showed that [DP] transferred from ESA(C) to ESA(IR) on 10 February 2018, but that “ESA ended on 13/02/2018”;

(c)

the local authority suspended [DP’s] housing benefit on 26 March 2018 “to give her the opportunity to provide proof of her income in order to re-assess her HB”. In the absence of any contact from [DP], the local authority “cancelled the appellants HB from 19/02/2018”. This generated an overpayment of £336 “for the period 19/02/2018 to 19/03/2018 because a payment for this period had already been issued on 16/03/2018”.

10.

The statement of reasons recorded [DP’s] argument that the DWP incorrectly ended her ESA in December 2017 but she was not deemed fit for work until the beginning of April 2018, and the DWP accepted “that they processed her claim on the wrong date (a week late) and ended it two weeks early because they failed to process her JSA28 form”.

The Tribunal’s statement of reasons for appeal ref. SC 122/19/00649 included the following findings:

on 18 June 2018, the local authority were informed by the DWP that [DP] had been awarded JSA from 4 June 2018 and, on 22 June 2018, she was awarded housing benefit “based on her income of JSA”;

on 12 July 2018, the DWP informed the local authority that [DP’s] “ESA ended on 21/06/2018 as [DP] had failed to sign on”. I think that the Tribunal may have intended here to refer to JSA rather than ESA;

on 16 July 2018, the local authority suspended [DP’s] housing benefit award;

also on 16 July 2018, the local authority received from [DP] a copy of an email sent to the DWP stating that she was starting work on 2 July 2018;

on 17 July 2018, [DP] informed the local authority that she had had no income from 29 May 2018 to 30 June 2018;

on 20 July 2018, the authority lifted their housing benefit suspension, informed [DP] that her claim had “been re-assessed based on just her capital until her JSA was reinstated”, and “reassessed the…HB claim from 25/06/2018 based on nil income”;

on 23 July 2018, the DWP informed the local authority that [DP] was paid JSA “to 21/06/2018”;

in October 2018, HMRC informed the local authority that [DP] was in full-time employment, and the DWP informed them that “they had matched a discrepancy between HB and DWP records because the appellant was not in receipt of JSA”;

on 7 November 2018, the local authority reassessed [DP’] housing benefit based on HMRC earnings data, which generated an overpayment of housing benefit of £1,176 for the period 9 July 2018 to 15 October 2018.

The statement of reasons recorded [DP’s] arguments. This part of the statement repeated the arguments advanced in relation to case SC 122/19/00648 and added that [DP] understood her continuing housing benefit payments (following her return to work in July 2018) to “be back pay relating to the errors above”. Any overpayment was due to administrative error and should not be recoverable from her.

The Tribunal rejected [DP’s] arguments because “the notification letter dated 26/07/2018 clearly stated that the calculation was based on Jobseekers Allowance (contribution based) and therefore the appellant ought reasonably to have known she was being overpaid”.

Section 75(1) of the Social Security Administration Act 1992 enacts a general rule that “any amount of housing benefit determined in accordance with regulations to have been paid in excess of entitlement may be recovered…by the authority which paid the benefit”. This general rule is subject to provision made in regulations.

Regulation 100(1) of the Housing Benefit (General) Regulations 2006 provides that any overpayment of housing benefit shall be recoverable, expect one to which regulation 100(2) applies. Regulation 100(2) applies to an overpayment which arose in consequence of an official error where the claimant could not, at the time of receipt of the payment or a notice relating to it, reasonably have been expected to realise that it was an overpayment.

The Upper Tribunal granted DP permission to appeal against the First-tier Tribunal’s decision on two grounds:

arguably, the Tribunal gave inadequate reasons for its decision in SC122/19/00648 because it failed to deal with the arguments relied on by DP;

arguably, the Tribunal gave inadequate reasons for its decision in SC122/19/00649 because it did not explain why a notification given on 26 July 2018 showed that, for the period 9 July 2018 to 25 July 2018, DP ought reasonably to have known that she was being overpaid housing benefit.

The local authority resist this appeal. Their written submissions are more concerned with seeking to justify the case that they put to the First-tier Tribunal than the present grounds of appeal but it is clear that the authority do not accept that the Tribunal’s reasons for its decisions were deficient.

The Upper Tribunal’s permission determination of 23 January 2024 informed DP that, if she intended to reply to the local authority’s submissions, she would be required to do so within one month of the date on which the submissions were sent to her. On 23 April 2024, the local authority’s written submissions were sent to DP accompanied by (a) a letter written by Upper Tribunal staff which stated “you should now provide your reply within onemonth of the date of this letter”, and (b) a printed form which contained a space for a written reply and asked whether DP requested a hearing before the Upper Tribunal decided her appeals. No response having been received from DP, on 13 June 2024 Upper Tribunal staff wrote to her again to inform her that her that her reply should be received “as soon as possible” and warning her that, if she did not reply within 14 days, her appeal may be decided on the information available. To date, the Upper Tribunal has received no reply.

Neither party requests a hearing before the Upper Tribunal decides these appeals, and I am satisfied that I am able fairly to decide these appeals without a hearing. In fact, I think it is highly probable that DP would not attend a hearing if one were held.

DP was granted permission to appeal against the First-tier Tribunal’s decisions on two grounds. The local authority resisted those grounds and explained why in writing. DP was sent the local authority’s written submissions. DP has not contacted the Upper Tribunal to say that she has changed her postal address. Accordingly, I can only assume that DP has received the local authority’s written explanation as to why they resist her appeals and has chosen not to dispute the authority’s case. I do not consider that there is any real prospect of DP replying to the Upper Tribunal’s correspondence given DP’s failure to reply to the letters sent to her on 23 April 2024 and 13 June 2024, and her failure to respond to any of the at least five attempts made by Upper Tribunal staff to communicate her DP about a hearing of her application for permission to appeal. There is no point in giving DP any more time to reply to the local authority’s submissions.

DP is the Appellant in these proceedings which means the burden is on her to make good her case. By failing to respond to the local authority’s reasons for resisting her appeals, despite ample opportunity to do so, DP has failed to discharge that burden. DP has not made out her case that the First-tier Tribunal’s decisions involved errors on points of law.

These appeals are dismissed and the First-tier Tribunal’s decisions of 26 February 2020 stand.