IN THE UPPER TRIBUNAL 		      Appeal No: CH/5286/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright 

DECISION 

The Upper Tribunal allows the appeal of the appellant, but only to the extent set out below.

The decision of the First-tier Tribunal sitting at Port Talbot on 3 September 2014 under reference SC154/14/00792 involved an error on a material point of law and is set aside. 

The Upper Tribunal substitutes its own decision for that of the First-tier Tribunal.   

The substituted decision of the Upper Tribunal is to set aside the City and Council of Swansea’s decision of 11 June 2014 and replace it with a decision that Mr Rowles has been  overpaid housing  benefit from 18 January 2014 to 15 June 2014 but only the overpayment of housing benefit for the period from 30 January 2014 to 15 June 2014 is recoverable from him because the overpayment for the period 18 January 2014 to 30 January 2014 was caused by official error and Mr Rowles could not reasonably have been expected to realise he was being overpaid for this period.

This decision is made under section 12(1), 12(2)(a),  12(2)(b)(ii) and 12(4) of the Tribunals, Courts and Enforcement Act 2007

REASONS FOR DECISION 

1.	The parties are agreed that the First-tier Tribunal (“the tribunal”) erred in law for the reason I gave when I gave permission to appeal.  This was:

“I give permission to appeal, however, because it seems to me very well arguable that the tribunal erred in law in concluding that the “official error” overpayment was recoverable even for the period before [the appellant] received the 27 January 2014 notice. Given the finding of the First-tier Tribunal that [the appellant] (could only have) realised he was being overpaid once he had read the 27 January 2014 notice, surely the overpayment can only be recoverable from that date and not 18 January 2014. In the circumstances it seem to me that the correct decision ought to have been that the overpayment is only recoverable from either 27 January 2014 or, more arguably, the date [the appellant] received this notice (say, 30 January 2014) and that, if it is agreed the First-tier Tribunal erred in deciding the overpayment was recoverable from 18 January 2014, its decision ought to be set aside and I make the decision it ought to have made.”    

2.	As I say, both parties are agreed that the tribunal erred to this extent, and I agree with them.  It is a not infrequent error made by local authorities and the First-tier Tribunal. If in an “official error” case, as here, the sole basis for the claimant being reasonably expected to realise he is being overpaid is the decision notice, axiomatically that expectation cannot arise before he or she has received the notice and read it. Here it is conceded that that date was 30 January 2014, and accordingly the overpayment is only recoverable from then.

3.	The appellant argues that the tribunal erred in law in other respects. I do not accept this. As I said when I refused him permission to appeal on his grounds: 

“The appellant’s grounds of appeal have no merit, in my judgment, as they show no arguable error of law in the First-tier Tribunal’s decision.  It is important to emphasise that it is not the function of the Upper Tribunal to decide an appeal again on the factual merits.  An appeal to the Upper Tribunal can only succeed if the First-tier Tribunal erred in law.  What that means is if it got the particular legal test or tests wrong, or if it failed to consider all the relevant evidence, or if it failed to explain its decision properly, or it breached the rules of natural justice.  But if the First-tier Tribunal does all of this correctly, it will not have erred in law simply because that person considers the tribunal made the wrong decision on the facts.”

4.	Moreover, the sole ground on which he was given permission to appeal is set out in paragraph 1 above, and the appeal has been decided in his favour on that basis. There is nothing in the grounds he previously advanced or now seeks to advance which raises any additional arguable error of law on the part of the tribunal.  All he is arguing, in effect, is that the tribunal failed to assess the facts correctly.  I do not accept that this is the case  for the period from 30 January 2014. On the evidence before the tribunal it was reasonable for it to conclude (especially having heard from the appellant), and if necessary I so conclude, that he could reasonably have been expected to realise he was being overpaid housing benefit on reading the 27 January 2014 decision notice and realising that his industrial injuries disablement benefit of £66.64 per week (a significant sum in terms of the overall income) had been missed out from his income, especially where the notes on the reverse of the notice told him to check the notice carefully to make sure everything was correct and where what he was claiming was an income-related benefit.
    
5.	The appellant also now raises, albeit obliquely and with no details, that he understands that Swansea’s presenting officer spoke to the First-tier Tribunal judge prior to the last hearing. It is too late in my judgment for him to take this point, especially when it is so lacking in detail.  For example, is it alleged that the presenting officer spoke to the judge about this case and without the appellant being present, and if so on what basis has the appellant based his “understanding” that this took place (given, it would seem, he had no direct knowledge of it, but he was present at the hearing of his appeal)? Such a late, vague and speculative ground ought not to be entertained at this late stage in the proceedings.                         

6.	In the circumstances, I re-decide the appeal in the terms set out above.

 Signed (on the original) Stewart Wright
Judge of the Upper Tribunal
                                                                                                          
           Dated 16th April 2015