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Neutral Citation Number:	2008 18
Reported Number:	R(H)3/09
File Number:	CH 3160 2007
Appellant:	AH
Respondent:	Mendip District Council
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	19/11/2008
Date Added:	27/11/2008
Main Category:	Recovery of overpayments
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Recovery of overpayment – housing benefit – amendments to legislation on recoverability – whether retrospective The claimant was awarded housing benefit from November 2000. For part of the time, housing benefit was paid to the landlord. Following an investigation, the local authority discovered that the claimant and his wife had amounts of capital that together were well over the threshold for an award of either benefit. In May 2006, the local authority decided that the claimant had been overpaid housing benefit in respect of the inclusive period from November 2000 to June 2005. It also decided that overpaid benefit was recoverable from the claimant under section 75 of the Social Security Administration Act 1992 and regulation 101(2) of the Housing Benefit Regulations 2006. A tribunal dismissed his appeal. The issue for the Upper Tribunal was whether the amendments to the law on recoverability of overpayments of housing benefit that came into force in April 2006 applied to liability in respect of payments made before that date, the difference being that under the former law the claimant and his landlord would, for the period when benefit was paid to the landlord, be jointly and severally liable to repay, whereas under the amended law the claimant would be solely liable. Held, dismissing the appeal, that: 1. regulation 101 applies to decisions taken after it came into force and therefore to payments that were made before it came into force, and, since it effected a real change in liability, was retrospective in its terms. Therefore it was necessary to consider whether that retrospective effect was so unfair that it was not permissible to attribute to Parliament the intention that it should so operate (Plewa v Chief Adjudication Officer [1995] 1 AC 249, [1994] 3 WLR 317 followed) (paragraphs 37 to 40); 2. the presumption against retrospective effect is flexible and how the question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case (L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486 followed) (paragraphs 41 to 47); 3. the presumption did not apply in this case, since the retrospective effect did not result in any significant change in the ultimate legal position of any person affected (paragraphs 48 to 56); 4. while section 75 does not authorise retrospective provision expressly, in most circumstances a payment in excess of entitlement inevitably involves a retrospective change to that entitlement and so the provision authorises retrospective provision by necessary and distinct implication (Master Ladies Tailors Organisation v Minister of Labour and National Service [1950] 2 All ER 525 followed) (paragraphs 57 and 58); 5. in overpayment cases tribunals should use their power to give directions for the production of documents in order to ensure that there is no issue that might affect the overpayment and liability decisions and that the parties are able to participate fully in the proceedings (paragraphs 81 to 85).
Decision(s) to Download:	R(H) 3-09 bv.doc