Reply To: LA error OP – reasonableness for CL to check rent account


CH/0609/2004 is one of Mr Commisssioner (now Judge) Jacobs' decisions. 

Judge Jacobs often reminds us that decisions are not to be read as if they were statutes as each case will be decided on its own peculiar facts.

I have often put this into my submissions when representing appellants in similar cases:

"The Council cites CH/0609/2004 to support its case that Ms Xt could reasonably be expected to realise that she was overpaid.  The decision maker suggests that in CH/0609/2004 it was reported that a claimant could not reasonably conclude from silence that benefit was correctly being paid. 

CH/0609/2004 is not a reported decision   and I suggest that all the Commissioner did say in that case was that the particular appellant had not reason to suppose that he was being correctly paid given that he was required to report that he had started work and disclose his income from that work.  The appellant earned from  £1250 to £1500 a week gross (more than Ms X earned in a month).

Mr Commissioner Jacobs held in CH/0609/2004 at  [6]

6. In a number of decisions, I have said that tribunals should take a three-stage approach to the application of these provisions:

  • First, the tribunal must direct itself correctly on the law.
  • Second, the tribunal must identify the information that the claimant had about the housing benefit and council tax benefit schemes.
  • Third, the tribunal must determine what the claimant could reasonably have been expected to realise from that information.

 At [19]

“19. I also rejected the argument because of the amount of the claimant's income. The points made by Ms O'Donoghue about disregards, tapers and the rest might be relevant to someone whose income was at best going to have a marginal effect on entitlement. but in this case the claimant began earning the equivalent of £65000 a year. Given that, it was reasonable to expect him to realise that he would not retain his full entitlement to benefit, if he retained any entitlement at all. “

and at[20]

20. It is possible that information that is later available to the claimant may affect what the claimant could reasonably have been expected to realise. What happens if the claimant reports a change of circumstances to the local authority, but hears nothing in reply? I cannot imagine any circumstances in which the claimant could reasonably conclude from silence that benefit was being correctly paid. In the absence of confirmation that there was no change in entitlement, there are always other possibilities that at least require investigation. One is that the local authority did not receive the claimant's notification. Another is that it has been mislaid or overlooked. A third is that the local authority has not yet got round to dealing with it.

The decision maker has focussed on obiter remarks made by the Commissioner ] in  CH/0609/2004 at [ 20]  and elevated them into a statement of general principle.  The general principles are in fact outlined at [6 ]"

I often cite CH/0939/2004 where Mr Commissioner Jacobs held at [4-9]

Could the claimant reasonably have been expected to know that housing benefit was being overpaid?

4  I set aside the tribunal’s decision, because it did not deal adequately with this issue.

5  In dealing with this issue the tribunal should have considered the question: should the claimant have known that the landlord was continuing to receive housing benefit for him? The tribunal did not deal with the information available to him that might have shown whether the landlord was continuing to receive payments.

6 There are in evidence some receipts purporting to show payments into a bank. In view of the letter from the Bank of Scotland, it is surely beyond doubt that the receipts were not from one of their branches. Anyway, they were for the wrong amount and there seems to me to be no possibility of doubt, on the evidence, that at least the February 2002 payment did not reach the landlord’s account. As I told the claimant when granting leave, at the least that raises the suspicion that he had later concocted the receipts to make the appearance of payment.

7 But concocting evidence does not necessarily show that the claimant should have known at the time that housing benefit was still being paid to the landlord. That would require further findings of fact, perhaps drawn by inference from the evidence available.

8 I have directed a rehearing, because further investigation into the facts is needed. It would not be safe for me to substitute a decision on the information before me. The factual enquiry is better undertaken before a local appeal tribunal than before a Commissioner.

9 In view of the evidence of the concocted receipts, the claimant’s credibility will be in issue before the tribunal and I warn him to attend the hearing prepared to convince the tribunal that he should be believed.

Whether a claimant can reasonably be expected to realise he was being overpaid is  boh a subjective and an objective test.  The objective part of the test is outlined in CH/2554/2002.It is arguably the lead case. 

The test in CH/2554/2002 is essentially that of "What information was available to the climant at the relevant time?"

The subjective part is essentially what would that particular claimant be reasonably be expected to understand from that information?