Upper Tribunal Allows Appeal on [NAME] Overpayment Recovery

[NAME] v East Dorset District Council

(2020] UKUT 0270 (AAC)

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Perez

Appeal No. CH/2492/2019

Decision

1. The claimant's appeal is allowed.

2. The decision of the First-tier Tribunal dated 28 June 2019 (heard under reference SC238/18/01369) is set aside. I substitute my own decision that the £867 [NAME] overpayment (relating to how the [NAME] was taken into account) is not recoverable.

3. There was another appeal decided by the First-tier Tribunal for this claimant, on the same date and by the same panel, under number 5238/18/01370. That related to an asserted overpayment of [NAME] said to be due to a failure to disclose [NAME]. I address that to a limited extent at the end of this decision.

REASONS

Introduction

4. The claimant appeals to the Upper Tribunal with my permission (granted

13/1/20, pages 166 to 178).

5. The respondent local authority is East Dorset District Council ("the council"). In my grant of permission, I proposed that I substitute my own decision that the overpayment relating to how the [NAME] was taken into account is not recoverable (I will call this "the [NAME]-related overpayment"). The council says, in a submission dated 31 March 2020, that the council does not object to my making a decision to that effect and that the council is content for me to do so solely on the grounds mentioned in my grant of permission.

6. The council's representative also very helpfully draws to my attention the claimant's other appeal that went to the First-tier Tribunal under reference SC238/18/01370. That appeal related to what was said to be an overpayment of [NAME] for failure to disclose [NAME] (I will call this "the !IDB-related overpayment"). I return to that other appeal at the end of this

[NAME] v East Dorset District Council

(2020) UKUT 0270 (AAC)

decision. Unless I say otherwise, my page references are to the pages in the [NAME]­ related overpayment file.

7. The broad question for the First-tier Tribunal on this appeal was whether an overpayment of £867 in [NAME] - the [NAME]-related overpayment - was recoverable from this first-[NAME] claimant, who was 82 at the [NAME] he was awarded [NAME].

8. The claimant and his wife were asked to leave their daughter's home. He claimed [NAME] for accommodation he and his wife occupied after leaving their daughter's home. He declared, among other things, income in the form of a [NAME] of £419.33 net per month (page 45). The council awarded him [NAME] by letter dated 10 November 2017 (page 50). That letter was accompanied by three pages of figures and headings (pages 51 to 53). The council sent the claimant a separate letter dated the same day, 10 November 2017 (page 54). That separate letter explained that the council would not restrict the claimant's eligible rent for the first 13 weeks of the award.

9. Four months later, the council sent the claimant a letter dated 20 March 2018 (pages 111 and 112). That letter was accompanied by two pages of figures and headings (pages 113 and 114). The letter said on the first line that the claimant's [NAME] had been changed "because your Teacher's [sic] Pension has been corrected from annually to monthly for the following periods" (it did not say what "correcting it from annually to monthly" meant). The letter said halfway down the same page that, "As a result of the change in your [NAME] you have been overpaid the sum of £867.00, which I consider to be recoverable from you".

10. The claimant replied saying, among other things, "Having studied the very complicated calculations, we still do not understand the following statement "the overpayment has occurred because your Teacher's Pension has been corrected from annually to monthly for these periods"." (claimant's letter 28/3/18, page 115). In response to the claimant's letter, the council in a decision letter dated 4 April 2018 reconsidered the council's 20 March 2018 decision (page 117). The council told the claimant in that letter that the council had decided to uphold the decision notified to him on 20 March 2018. The claimant appealed to the First-tier Tribunal on a form he completed on 18 May 2018 (page 119). (I return to that form, at the end of this decision, in relation to the !IDB-related overpayment decision.)

11. The 20 March 2018 decision letter revised entitlement. That resulted in an overpayment of [NAME] which arose under regulation 80 of the [NAME] (Persons who have attained the qualifying age for state pension credit) Regulations 2006. But by virtue of regulation 81(1), (2) and (3) of those regulations, the overpayment is not recoverable from the claimant if there was a mistake made by or on behalf of an authority mentioned in regulation 81(3), which includes the council in this case, and if the claimant (i) did not cause or materially contribute to the mistake, and (ii) could not, at the [NAME] of receipt of the payment or of a notice relating to the payment, reasonably have been expected to realise that it was an overpayment.

2 [NAME] v East Dorset District Council CH/2492/2019

[NAME] v East Dorset District Council

[2020) UKUT 0270 (AAC)

12. The council accepted that it had umade an error'' in treating the declared [NAME] of £419.331 net per month as an annual figure (record of proceedings, page 132). The council's presenting officer told the First-tier Tribunal that the council had "calculated [it] wrongly as £8.04 pw instead of £96.77 pw" (record of proceedings, page 131).

13. The council also appeared to accept, at the First-tier Tribunal hearing, that the claimant had not caused or materially contributed to the council's mistake (record of proceedings, pages 132 and 133). And that appears to have been the basis of the tribunal's decision notice at page 135. It seems the only issue before the First-tier Tribunal, from the council's point of view (although less clearly from the tribunal's point of view - see paragraphs 37 and 38 of this decision), was whether the claimant could, at the [NAME] of receipt of the 10 November 2017 letter - which was "a notice relating to the payment" - reasonably have been expected to realise that the payment was an overpayment. The tribunal found that he could and that the overpayment was therefore recoverable from him.

Erro!'.!J)f law

14. With the council's agreement, I find as follows.

15. The tribunal erred in law in giving inadequate reasons, in failing to make adequate enquiry and in making inadequate findings in relation to whether the claimant could, at the [NAME] of receipt of the 10 November 2017 notice relating to the payment, reasonably have been expected to realise that it was an overpayment. I say that for the reasons at paragraphs 16 to 35 of this decision. I include in the annex to this decision a redacted copy of the 10 November 2017 letter, taken from pages 50 to 53.

Inadequate reasons, inadequate enquiry and inadequate findings

Introduction

16. The tribunal's record of proceedings records the following oral evidence from the claimant-

"O P.50-Award letter of 10/11/2017

P.51.

Did you read the letter?

A Didn't read the letter- lots of different figures So much came through

Didn't realise until Council brought to notice

0. When get official letter normally read

1 The figure £449.33 for the declared [NAME] in the record of proceedings on page 131 seems to be an error that has crept in from an erroneous correction ofa transposition error. It seems to have been written as "£149.33" initially, then the I has been changed to a 4 rather than swapping the I and 4 around. The Teachers' Pensions document at page 45 of the [NAME] file shows the net figure to be £419.33, as does paragraph 16 of the statement of reasons (page 138 of the [NAME] file).

3 [NAME] v East Dorset District Council CH/2492/2019

[NAME] v East Dorset District Council

[2020) UKUT 0270 (AAC)

A Yes - but bundles of figures - if I'd noticed I would have said something about it" (page 131)

"Q. Background -

A Taught/lecturer at [COMPANY] - skills based" (page 133)

"I am drowned in paper-work -

If not skilled - I can't work out paper-work. Coming up 84. now." (page 134).

17. The tribunal accepted the claimant's evidence that he had not read the pages showing the wrong weekly income: "Had [he] read the accompanying pages of the entitlement letter it would have been clear to him ... " (paragraph 29, page 139). The tribunal also accepted that this was the claimant's first application for [NAME] and that "the 4 pages of the award letter of 10/11/17 were not easy to follow" (decision notice, paragraph 4, page 135).

18. So it was just a question of whether this [NAME], who had said he was drowned in paperwork and that he saw the pages as bundles of figures, could reasonably have been expected to realise from the 10 November 2017 award letter at pages 50 to 53 that the payment mentioned in it was an overpayment.

19. The tribunal found that "it would have been reasonable for him to [check whether the information in the 10/11/17 award letter was correct] and to have noted the error which is clear'' (paragraph 30, page 139).

20. The tribunal said in its statement of reasons (pages 138 and 139)-

"17. The Respondent accepted that they had wrongly attributed this [£419.33] as an annual figure and added income of £8.04 per week rather than £96.77 per week.

18. This was set out in the entitlement letter dated 10 November 2017 (Pages 50).

19. The details of the assessment for the [NAME] award was [sic] set out in the accompanying schedules at pages 51-54 [sic].

20. In the second paragraph of the letter the Respondent wrote "Please read on the following pages for details of how your benefit is worked out. If you think anything is wrong please tell me immedlately".

21. On page 52 a central and underlined section is headed "About your income". Three income sources are shown all sub headed "weekly income", two state retirement pensions of £194.62 and £86.11 and one occupational pension of £8.04. The state pension figures are correct as weekly figures. The occupational pension (Teacher's pension) weekly figure has been wrongly shown calculated on an annual rather than a monthly basis. This is restated on Page 52 and 53.

[...]

4 [NAME] v East Dorset District Council CH/2492/2019

[NAME] v East Dorset District Council

[2020) UKUT 0270 (AAC)

25. This was the first [NAME] that [the claimant] had applied for [NAME] and he was aged 84. He had a background as a lecturer at[ ... ] [COMPANY]. He told the Tribunal that he was drowned in Paperwork.

[...]

27. In making its decision the Tribunal took account of [the claimant's] lack of knowledge of the [NAME] but weighed against that the fact of his literacy and his clear statement that he usually read official letters.

28. The covering letter from the Council was clearly written and the obligation on the Claimant to read all the letter and to let the Council know if anything was wrong set out in straightforward prose. The mistake was not hidden and the income used clearly set out. The other two pensions were correctly shown and this highlighted the substantial mis-statement of the occupational pension. The variance was £88.77. The correct recording of the state pensions flags up the incorrect statement of the occupational pension.

29. Had [the claimant] read the accompanying pages of the entitlement letter it would have been clear to him that an error had been made and that an error of this magnitude in the recording of income would lead the Council to overpay him.

30. This was not a matter of the Council making an incorrect calculation on accurately shown income where it might have been difficult for a claimant to follow the mathematics leading to an award. This is a case where the Council wrongly set out the income of which they had been informed ... The figures are clearly shown as is the obligation on [the claimant] to check the letter and report anything that is wrong. He did not read the letter, nor check to see whether the information contained in it was correct. He was clearly told in writing to do so and it would have been reasonable for him to do this and to have noted the error which is clear.".

(1) Inadequate reasons for finding that the letter and mistake were "clear' and that the claimant would have noted the mistake

21. When I first read the above parts of the statement of reasons, it did sound as if the claimant ought reasonably to have spotted the misstatement of the [NAME] from the "clear" letter at page 50 and its three accompanying pages which the tribunal had described.

22. And then I turned to pages 50 to 53, and that impression instantly changed. Those pages are a shock to the eye. They are written in what appears to be "courier'' font with serifs (and a version in which each letter is wide). They are set out in a busy way that is by no means easy on the eye. The narrow side margins - especially the very narrow left margin - mean the reader has to scan from left to right more than with wider margins and so may less readily pick up the sense by looking centrally at the paragraph. Clarity is not served either by the broken dash lines used to underline headings, or by the spaces (apparently produced by the font) before punctuation, especially before full-stops and colons.

5 [NAME] v East Dorset District Council

CH/2492/2019

[NAME] v East Dorset District Council

(2020] UKUT 0270 (AAC)

23. These factors were compounded by the following additional aspects of the letter.

"Obligation to check"

24. As to the "obligation to check the letter and report anything that is wrong", the tribunal relied on what it called the second paragraph of the letter on page 50 as telling the claimant that he must check the remaining pages. That text said-

"Please read on the following page(s) for details of how your benefit is worked out. If you think anything is wrong please tell me immediately".

25. In fact, this text is at the end of the fourth or fifth paragraph in the letter, depending on how you count them, and is by no means "clearly shown" as the tribunal said. While the prose itself - in terms of the words used - is "straightforward", as the tribunal said, that is not enough. The layout and font of the letter, and the location within it of the "Please read" text, render that text not readily accessible in my judgment.

Misstatement of [NAME]

26. As to the misstatement of the [NAME] on the pages accompanying the 10 November letter on page 50, I do not agree that the "mistake was not hidden and the income used clearly set out". Nor do I agree that, "Had [the claimant] read the accompanying pages of the entitlement letter it would have been clear to him that an error had been made and that an error of this magnitude in the recording of income would lead the Council to overpay him".

27. Page 51 does say "ABOUT YOUR INCOME". Then it says "Weekly Income", and lists "Occupational Pension" as £8.04. But that is on the same page as headings such as "Disregarded", "Personal Allowance", and "Your Applicable Amount is". Even without the claimant's evidence that he was drowned in paperwork, I can readily see that, even if he had read page 51 and noticed the £8.04 among all the other figures on that page - the "bundles of figures" as he put it - the claimant would not realise that that was wrong. It is apparent from page 51 onwards (the first of the three accompanying pages) that the council is using figures in certain ways, and is breaking them down in ways that the claimant had not done in supplying them to the council. For example, "Your income after disregards is more than your applicable amount by £30.62, this is called your excess income". And that page 51 goes on, for example, to show a calculation that the "Rent Amount used" has had deducted from it "65% of excess income".

28. The claimant's evidence that the letter was "bundles of figures" was apt. All four pages are off-putting to the eye.

29. I mention below that the tribunal did not find out what the claimant had lectured in or say what it made of his evidence of being drowned in paperwork. But even without those additional factors, the tribunal needed to explain why, despite the factors at paragraphs 22 to 28 of this decision, the tribunal found (a) that the 10 November letter and enclosures at pages 50 to 53 were "clearly written", and (b) that this first-[NAME] claimant aged 82 would have noticed the mistake in how the Teachers'

6 [NAME] v East Dorset District Council

CH/249212019

[NAME] v East Dorset District Council

(2020] UKUT 0270 (MC)

Pension had been taken into account had he read the letter. Such an explanation was especially required given that the tribunal did not appear to think, when writing its decision notice two months earlier, that those pages were clearly written-

"the 4 pages of the award letter of 10/11/2017 were not easy to follow" (decision notice, 28/6/19, paragraph 4, page 135).

30. Bear in mind too that the legislation requires not merely that the claimant notice the mistake, but also that he could "reasonably have been expected to realise that" the mistake would result in an overpayment (regulation 81(2)). Given (a) the complex ways in which figures are used in the 10 November letter and enclosures on pages 51 to 53, and (b) that this was a first-[NAME] claimant, that conclusion required much more explanation than the tribunal gave.

(2) Failure to enquire as to what the claimant had lectured in

31. The record of proceedings says the claimant said his teaching (before he retired) was "skills based" (page 133). The tribunal should have enquired further into that before relying on the claimant's having been a lecturer. The claimant says his "main duties were instructing apprentices in the art of bricklaying" (letter 16/9/19, page 141, paragraph 25). I accept that he would have answered to that effect had the tribunal asked him what he had taught at [COMPANY]. The tribunal could well have given less weight to the "lecturing" had the tribunal elicited and accepted that evidence.

(3) Failure to take account of, and make findings as to, other relevant factors

32. The tribunal said it "took account of [the claimant's] lack of knowledge of the [NAME] but weighed against that the fact of his literacy and his clear statement that he usually read official letters" (statement of reasons, paragraph 27, page 139).

Age

33. The tribunal did not also however appear to take account of the claimant's age, as he points out. He was 82 when he received the 10 November 2017 award letter and enclosures. Age is not necessarily of itself a reason why a claimant cannot reasonably be expected to notice an error (and to realise - let's remember - that the error produces an overpayment). But age is, nonetheless, a factor that needs to be considered. Any appetite for ploughing attentively through four pages of text and figures - especially pages having the characteristics I mention above - could be expected to be reduced by that age. The tribunal should at least have said what it made of the claimant's point that "If not skilled - I can't work out paper-work. Coming up 84. now." (record of proceedings, page 134).

"Bundles offigures"

34. The claimant is recorded as answering "Yes" to "When get official letter normally read"? (record of proceedings, page 131). But he caveated that by saying, in effect, that he classed what he had received not as a letter but as "bundles of

7 [NAME] v East Dorset District Council

CH/2492/2019

[NAME] v East Dorset District Council

(2020] UKUT 0270 (AAC)

figures". The tribunal also erred in law by failing to take that caveat into account and in failing to say what it made of the caveat.

"Drowned in paperwork"

35. And, although the tribunal mentioned the claimant's evidence that he was drowned in paperwork (paragraph 25), the tribunal did not say what it made of that evidence. It should have said whether it accepted that the claimant felt drowned in paperwork. If the tribunal had accepted that evidence, it would have needed to go on to make a finding as to the effect of his feeling drowned in paperwork.

Labelling the [NAME] as "Occupation Pension"

36. Labelling the [NAME] as "Occupational Pension" on each of the three pages accompanying the award notification letter at page 50 may not have helped clarity either. Even the tribunal felt it necessary or preferable to explain what it meant (my emphasis)-

"The occupational pension (Teacher's pension) weekly figure ... " (paragraph 21, page 138).

I do not however include this point among the factors rendering unclear the 10 November award letter and its enclosures because the claimant might reasonably be expected to understand that "occupational pension" meant his [NAME]. I do not find that he definitely could reasonably be expected to understand that. Rather, I make no finding one way or the other as to whether this was an additional factor rendering unclear the letter and enclosures. That does not affect the outcome of this appeal. The other factors rendering unclear the letter and its enclosures suffice, with the council's agreement, for me to find - as I do below - that the claimant could not reasonably have been expected to realise from the 1O November letter and enclosures that the [NAME] payment mentioned in them was an overpayment.

Conflation of issues

37. I said in granting permission to appeal that the tribunal had also arguably erred in conflating whether the claimant could reasonably be expected to realise that the payment was an overpayment with whether the claimant caused or materially contributed to the council's mistake. The tribunal accepted in the decision notice that the overpayment arose in consequence of an official error (which meant the claimant had not caused or materially contributed to the mistake, as defined in regulation 81(3)). The tribunal's focus in the decision notice was therefore on whether the claimant "could reasonably have been expected to realise an overpayment had been made" (paragraph 7, page 135).

38. But by the [NAME] the tribunal came to draft the statement of reasons two months later, the tribunal appeared to conflate the two issues. In paragraph 31 of the statement of reasons, the tribunal found that the failure to read the letter or check the information was the cause of the overpayment. But if the claimant had indeed caused or materially contributed to the overpayment, the overpayment would not have arisen "in consequence of an official error'' as defined in regulation 81(3). Yet

8 [NAME] v East Dorset District Council CH/2492/2019

[NAME] v East Dorset District Council

[2020) UKUT 0270 (MC)

the tribunal had already found in its decision notice that - as the council had accepted - the overpayment did so arise.

39. I also said, however, that I would not need a submission on this arguable error, if the council were to accept that the tribunal erred in law in the ways mentioned at paragraphs 15 to 35 above. The council does accept that the tribunal erred in law in those ways. So I need not - and do not - make a finding on this conflation point.

DISQOSal

Settiog_aside

40. It is for the reasons at paragraphs 15 to 35 above that I am setting aside the First-tier Tribunal's decision.

UQQ§LTribunal's substituted decision

41. The council agrees to my substituting my own decision that the overpayment is not recoverable from the claimant. I do so for the following reasons.

Legislation

42. The First-tier Tribunal made its findings by reference to regulation 100 of the [NAME] 20062: "the starting position ... is set out in Regulation 100 of the [NAME] 2006" (statement of reasons, paragraph 14, page 138).

43. The council had said, in paragraph 4.1 of its submission to the First-tier Tribunal, that the "relevant legislation" was regulations 80, 81 and 82 of the [NAME] (Persons who have attained the qualifying age for state pension credit) Regulations 20063• But later in the same submission, at paragraph 6.1, the council said that "Regulation 80 of the [NAME] 2006" contained the definition of "overpayment". In fact, the definition of "overpayment" in those regulations is in regulation 99, not regulation 80. But the definition of "overpayment" in the [NAME] (Persons who have attained the qualifying age for state pension credit) Regulations 2006 is in regulation 80 of those regulations. The submission went on to set out a regulation 81, which contained recoverable overpayment provisions. In fact, the regulation 81 that the council was there talking about was in the [NAME] (Persons who have attained the qualifying age for state pension credit) Regulations 2006. And that was also the legislation included at page 121 of the papers which the council appears to have supplied to the First-tier Tribunal. ·

44. Regulation 100 of the [NAME] 2006 is identical to regulation 81 of the [NAME] (Persons who hav-e attained the qualifying age for state pension credit) Regulations 2006. Each provides as follows-

1 S.I. 2006/213, as amended.

3 S.I. 2006/214, as amended.

9 [NAME] v East Dorset District Council CH/2492/2019

[NAME] v East Dorset District Council

(2020] UKUT 0270

66. The council says the claimant appealed to the First-tier Tribunal against that second decision too, on the grounds that as "IIB is issued by the DWP this is something we could have decided". The council says "Two submissions were sent to the Appeals Tribunal Service to be heard but highlighting that it was two separate appeals against the invoices individually". The council asks the Upper Tribunal: "Please could you advise whether the second appeal against the second invoice is going to go to the Upper Tribunal or whether it remains recoverable?" (submission 31/3/20). The council has helpfully supplied a copy of the two submissions that the council made to the First-tier Tribunal4.

Discussion

67. An appeal against the First-tier Tribunal's decision about the [NAME]-related overpayment does not appear to be before the Upper Tribunal, or at least, not yet. I say that for the reasons at paragraphs 69 to 81 below. I am not, however, making a formal ruling to that effect because the claimant has not asked me to treat his appeal as being against the !IDB-related overpayment decision too. In other words, the question is not before me. If the claimant were thinking of asking me to do that, I would want to know whether he had first tried the steps at paragraph 81 below (if he has no statement of reasons) or the steps at paragraph 83 below (if he does have a statement of reasons).

68. Returning to why I say the !IDB-related overpayment appeal does not appear to be before the Upper Tribunal, I say that for the following reasons.

4 It is not clear that those submissions were supp lied to the claimant in [NAME] for him to address them at his First-tier Tribunal hearing - l cannot see them in the papers. l need not decide, however, whether any failure to supply them to him was a material error of law because I am deciding the appeal for other enors of law, on which I have already had the council's submissions.

14 [NAME] v East Dorset District Council CH/2492/2019

[NAME] v East Dorset District Council

[2020) UKUT 0270 (AAC)

69. The original [NAME] decision changing entitlement was dated 20 March 2018 (page 111). That was reconsidered in a decision dated 4 April 2018, but not changed (page 117). On a separate First-tier Tribunal file, numbered SC238/18/01370 (which I shall call "the 1108 file"), there is a decision changing entitlement because of the [NAME] (page 47 of the 1108 file). That decision - like the reconsideration decision for the [NAME]-related overpayment - was dated 4 April 2018.

70. The claimant appealed to the First-tier Tribunal on one appeal form, dated 18 May 2018, against two decisions. The completed appeal form is on page 119 of the file numbered SC238/18/01369. That is the file relating to the [NAME]-related overpayment (to which the present appeal relates). I shall call it "the [NAME] file". A duplicate copy of the completed appeal form is on page 52 of the 1108 file. The claimant said on the form that he was appealing against a decision dated 4 April 2018 (in addition to appealing against the decision dated 20 March 2018). The claimant's reference on that form to [NAME] shows that the 4 April 2018 decision against which he was appealing was the one about the

!IDB-related overpayment (and not the 4 April 2018 reconsideration decision relating to the [NAME])-

"! wish to appeal your decision [sic) dated 20/03/2018 and 04/04/2018. I feel both of these decision (sic] were as a result of your errors. We gave you all of the information for our Teachers pension [sic] and you have input this information incorrectly. The injuries benefit is issued by DWP and is something you could have checked." (my emphasis, page 119 [NAME] file, and page 52 11B file).

71. The council tells me that the council supplied two appeal submissions to the First-tier Tribunal. It is clear, from the copies of those that the council has supplied to me, that the appeal the council called "Appeal 1" was the one about the [NAME]-related overpayment, and the appeal the council called "Appeal 2" was about the 11D8- related overpayment.

72. The First-tier Tribunal gave each of those appeals a separate file number: SC238/18/01369 for the appeal about the [NAME]-related overpayment, and SC238/18/01370 for the appeal about the !IDB-related overpayment. I see on the [NAME] file that the First-tier Tribunal made a separate decision on the appeal about the 11D8-related overpayment (page 55 of the 11D8 file). There is on that 1108 file no statement of reasons and no application for permission to appeal. The last page on that file is the First-tier Tribunal's decision notice in the appeal about the 11D8-related overpayment.

73. But, both those appeals were heard on the same day, 28 June 2019, and by the same First-tier Tribunal judge. The claimant then sought a statement of reasons, by letter dated 8 July 2019 (page 136 of the [NAME] file). But he put only one of the two appeal numbers at the top of his request: the one ended 01369 (relating to the [NAME]). And the judge seems, from what I can see on both files, to have given a statement of reasons only for that appeal (pages 137 to 139 of the [NAME] file).

15 [NAME] v East Dorset District Council

CH/2492/2019

[NAME] v East Dorset District Council

[2020] UKUT 0270 (MC)

74. It seems to me that the claimant may have wanted a statement of reasons for everything that was decided against him by the tribunal on 28 June 2019. If he did, then where things went awry may be that he put only the number ended 01369 as his reference for that request (page 136 of the [NAME] bundle).

75. However, I can see why the claimant would have put only that number even if he wanted a statement of reasons for both appeal decisions (and why he might want to argue that that should have been apparent to the judge who supplied the statement of reasons). There seems to be only one copy of a record of proceedings. It is on the [NAME] file, starting at page 130. It does not appear ever to have made it onto the [NAME] file; the tribunal's decision notice on page 55 of that file immediately follows a page - page 54 - on which are set out regulations 67 and 81 of the [NAME] (Persons who have attained the qualifying age for state pension credit) Regulations 2006. That legislation page was the last page of the material put before the First-tier Tribunal. So one would expect the record of proceedings, if any, to come immediately after that. But the next page is the tribunal's decision notice.

76. Even though not also on the [NAME] file, the record of proceedings seems, at page 132 of the [NAME] file, to address the overpayment relating to the [NAME]-

"Q. FTD - didn't get declared - IDB A Accept that not declared".

77. But the record of proceedings has at the top only the appeal number for the appeal relating to the [NAME]: SC238/18/01369 (page 130). I am not presently deciding the point (which may become the subject of a separate appeal). But it seems to me that having just the one appeal number at the top of the record of proceedings, in addition to having had both appeals heard on the same day by the same First-tier Tribunal judge, could have led the claimant to think he could make a request for a statement of reasons under that single number, to deal with both the

£867 [NAME]-related overpayment and the £639.98 !IDB-related overpayment.

78. The judge, however, gave a statement of reasons only for the appeal numbered SC238/18/01369, relating to the [NAME].

79. Under the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 20085, the usual procedure for appealing against a First-tier Tribunal decision is that the claimant must request a statement of reasons, then ask the First-tier Tribunal for permission to appeal to the Upper Tribunal. If the First-tier Tribunal refuses permission, the claimant then applies to the Upper Tribunal for permission to appeal (as happened in this appeal, relating to the [NAME]).

80. There is a [NAME] limit for requesting a statement of reasons from the First-tier Tribunal: it is one month from the date on which that tribunal's decision notice was sent to the claimant (rule 34(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008). The decision notice at page 55 of the [NAME] file

5 S.I. 2008 /2685, as amended.

16 [NAME] v East Dorset District Council CH/2492/2019

[NAME] v East Dorset District Council

[2020] UKUT 0270 (AAC)

does not show a date of issue. But the judge's signature on it is dated 28 June 2019. The claimant's request for a statement of reasons dated 8 July 2019 was stamped as received on 12 July 2019 (page 136 [NAME] file). That request was made therefore within the one-month [NAME] limit. I say that because the decision notice could not have been sent before it was signed on 28 June, so the [NAME] limit could not have been earlier than one month from then, which was 28 July 2019. But, as I have pointed out, the request specifically mentioned only the number SC238/18/01369.

81. If the claimant meant, by his 8 July 2019 request on page 136 of the [NAME] file, that he also wanted a statement of reasons for the tribunal's decision under number SC238/18/01370 (about the !IDB-related overpayment), in order to seek permission to appeal against that decision, then he will need to tell the First-tier Tribunal that. If the First-tier Tribunal supplies the statement of reasons (whether because it treats the timeous request dated 8 July 2019 as relating to that appeal decision, or because it waives what it may see as a delay), then the claimant can if he considers appropriate, take the next step. The next step is to ask the First-tier Tribunal for permission to appeal against its decision about the [NAME]-related overpayment. If the claimant does request a statement of reasons for that other decision but the First-tier Tribunal refuses that request, the First-tier Tribunal's refusal letter should come with notes as to what next steps the claimant can take.

82. I caution the claimant however. Just because I mention the other case - the one about the [NAME]-related overpayment- that does not mean I am encouraging him to try to appeal against the First-tier Tribunal decision in that case. But nor am I discouraging him.

83. If I am wrong, and the claimant does in fact have a statement of reasons for the First-tier Tribunal's 28 June 2019 decision about the 1108-related overpayment, then if he wishes to appeal against that decision, the normal route is as described at paragraph 81 above: ask the First-tier Tribunal for permission to appeal, and if that is refused, ask the Upper Tribunal for permission. I have not seen an application - either to the First-tier Tribunal or to the Upper Tribunal - for permission to appeal against the First-tier Tribunal's decision about the !IDB-related overpayment. If the claimant is thinking of seeking permission to appeal in relation to that overpayment, that is, the one for £639.98, I again remind him that just because I mention it, that does not mean I am encouraging him to appeal.

84. I do also remind the claimant that, just because there is an overpayment decision and invoice for the !IDB-related overpayment, that does not necessarily mean that the council will enforce payment. The claimant may wish to put his financial circumstances to the council and ask the council whether it plans to enforce payment of the £639.98 invoice. If the council says no, then the claimant may decide to let matters lie rather than challenging the 4 April 2018 [NAME]-related overpayment decision. That is a matter for him.

Rachel Perez

Judge of the Upper Tribunal 8 September 2020

17 [NAME] v East Dorset District Council

CH/2492/2019

[NAME] v East Dorset District Council

[2020] UKUT 0270 (AAC)

Annex to Upper Tribunal decision

A redacted copy of the 10 November 2017 letter is on the following four pages

18 [NAME] v East Dorset District Council CH/2492/2019

; ST.OUR V &· [NAME]- ' ·

. 722 ' Poole; [POSTCODE] ·· . · · ·

, e: [PHONE]- · Er"ndiL [EMAIL]··

Ple ask for: Benefits services Telephone: [PHONE]

Fax: [PHONE]

email: [EMAIL]

Reference No:

Date: 10 November 2017

,_

[NAME]

I am wr ting to tell you about your claim for [NAME] and changes in entitlement.

From 30 Oct 2017 - 28 Jan 2018 an amount of £141.64 per week. From 29 Jan 2018 - 01 Apr 2018 an amount of £103.68 per week. From 01 Apr 2018 - an amount of £103.68 per week.

Payment will be sent direct to your building society as you have requested.

Paymen,.t will be sent on 20 November 2017. The first payment will be £424.92 and will cover the period from 30 October 2017 to 20 November 2017.

You must inform the Benefits Service immediately, in writing, if there are any changes in circumstances, such as a change of address, income, capital or a change in the number of people living in your household. If you do not tell us about changes of circumstances (including those of a member of your household) [NAME] may lose money you are entitled to or you may get too much benefit.

Please read on the following page(s) for details of how your benefit is worked out. If you think anything is wrong please tell me immediately.

If you think the decision is wrong, you can ask for the decision to be looked at again. If you wish to ask for the decision to be reconsidered you must write to the Benefits Section within one month of the date of this letter. Please explain why you disagree with the decision. If the decision cannot be changed we will tell you why. You can ask us for further information about the decision that h s been made. You also have the right to appeal. If you wish to appeal, you must write to me within one month of the date of this letter with your grounds for appeal.

Yours sincerely

Benefits Manager --· ..

Christchurch, East Dorset, North Dorset and Poole Councils working together

A8-pr-il_

!fast Dorset

-hifirt(HIICII

D II T ■~ I C T CIJIIIICII.

IL

tr.

- Our ref: Date: 10

. (

HoQNG BENEFIT ASSESSMENT FROM 30 Oct 2017 is £141.64 a week.

The following details were used in this assessment:

-A-BO-U---T---------YOUR RENT

Your rent is £700.00 every calendar month. As [NAME] is ca1culated as

a weekly figure, your rent must be converted to a weekly figure also.

Your weekly rent is

MAXIMUM WEEKLY RENT eligible for benefit

-£-1-6-1.-5-4-

£161.54

Weekly Income:

A--B-O-U-T--YOUR INCOME

Amount

Disregarded

Your capital is £3.77. This is less than the capital limit and therefore not used for this calculation.

You have notified me [NAME](-) [NAME];i.de [NAME](-)

of the following details of your capital:

£0.68

-£408.00

£3.09

Your total income used in this calculation is £288.77

=

Your Applicable Amount--(-t-h-i-s--i-s--t-h-e--a-m-o-u-n-t--s-e-t--b-y-the Government depending on your circumstances)is worked out as follows:

Personal Allowance

Your Applicable Amount is

£258.15

£258.15

HOW YOUR BENEFIT IS CALCULATED

Your benefit is worked put as follows :

Maximum weekly rent eligible for benefit is £161.54

Maximum benefit can only be paid if your income is the same as or lower than your applicable amount.

Your income after disregards is more than your applicable amount by £30.62, this is called your excess income.

Rent Amount used

Less 65% of excess income

Week1y [NAME]

£161.54

-£-1--9-.-9-0

£141.64

-· .....

- -

. . our ref:

Date: 10 November 2017 (_

HOUOG BENEFIT ASSESSMENT FROM 29 Jan 2018 is £103.68 a week.

The following details were used in this assessment:

Your rent is £700.00 every--c-a-l-e-n-d-a-r--m-o-n-t-h. As [NAME] is calculated as a weekly figure, your rent must be converted to a weekly figure also.

Your weekly rent is

Your benefit is worked out using the 1 room LHA rate of £123.58 per week for the area in which you live. LHA rates are reviewed annually each April. You should continue to inform us in writing when there is any change to the rent you are being charged but the maximum eligible rent cannot exceed the April LHA rate that applies to you.

This calculation is based on 2 people in your household.

Please note that the maximum rent that we can use in the calculation is either the weekly LHA rate or your rent, whichever is the lower.

£161.54

MAXIMUM WEEKLY RENT eligible for benefit £123.58

Weekly Income:

ABOUT YOUR INCOME

Amount

Disregarded

You have notified me [NAME] (-) [NAME] (-) [NAME] (-)

of the following details of your capital:

£0.68

-£408.00

£3.09 ,:·

Your total income used in this calculation is £288.77

Your Applicable Amount--(t-h-i--s--i-s--t-h-e--am-o-u-n-t--s-e-t--b-y-t-he Government depending on your circumstances)is worked out as follows:

Personal Allowance

Your Applicable Amount is

£258.15

£258.15

HOW YOUR BENEFIT IS CALCULATED

Your benefit is worked out as follows:

Maximum weekly rent eligible for benefit is £123.58

Your income after disregards is more than your applicable amount by £30.62, thiS-is called your -excess income.

Local Housing Allowance Less 65% of excess income

[NAME]

£123.58

£19.90

£103.68

Our ref: Date: 10

November 2017

'5 s

[NAME] FROM 01 Apr 2018 is £103.68 a week.

The following details were used in this assessment:

Your rent is £700.00 every--c-a-l-e-n-d-a-r--mo-n-t-h-. As [NAME] is calculated as

Your weekly rent is

This calculation is based on 2 people in your household.

£161.54

MAXIMUM WEEKLY RENT eligible for benefit £123.58

Weekly Income:

-A-B-O-U-T--YOUR INCOME

Amount

Disregarded

State Retirement Pension (Higher) Occupational Pension

State Retirement Pension (Higher)

£194.62

£8.04

£86.11

£0.00

£0.00

£0.00

You have notified me [NAME](=) [NAME] ( ) [NAME] (-)

of the following details of your capital:

£0.68

-£408.00

£3.09

Your total income used in this calculation is £288.77

Personal Allowance

Your Applicable Amount is

£258.15

£258.15

HOW YOUR BENEFIT IS CALCULATED

Your benefit is worked out as follows:

Maximum weekly rent eligible for benefit is £123.58

Your income after disregards is more than your applicable amount by £30.62, this is-called-your excess income.

Local Housing Allowance Less 65% of excess income

[NAME]

£123.58

-£-.1-9-.-9-0

£103.68