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Neutral Citation Number:
Reported Number: R(H)10/07
File Number: CH 2913 2005
Judge/Commissioner: Judge E. Jupp
Date Of Decision: 02/03/2007
Date Added: 15/03/2007
Main Category: Housing and council tax benefits
Main Subcategory: recovery of overpayments
Secondary Category:
Secondary Subcategory:
Notes: Housing benefit – whether overpayment can be recovered from landlord’s agent The claimant was awarded housing benefit in August 2003, based on his entitlement to income support, and payment was made to his landlord’s agent as authorised by the claimant. His entitlement to income support ceased on 28 May 2004 when he was taken into legal custody, but the local authority was not informed, and an overpayment of housing benefit arose, which it was decided should be recovered from the agent as “the person to whom it was paid” within the meaning of section 75(3)(a) of the Social Security Administration Act 1992. The agent appealed, arguing that a decision to recover the overpayment should not be directed to it. The tribunal allowed the appeal, applying the law of agency to find that the overpayment was not recoverable from the agent because it was an agent for another to whom it had accounted for all monies received. The authority appealed to the Commissioner, submitting that it was the clear intention of the Housing Benefit (General) Regulations 1987 that it was proper for an authority to seek recovery from an agent if that was the “person” to whom payments were made. Neither the agent nor the authority took any further part in the proceedings, the authority relying on the Secretary of State’s representations. The Secretary of State argued that section 75(3)(a) of the Social Security Administration Act 1992 should not be read as being subject to the law of agency, following R(IS) 3/07, because the overpayment provisions in the legislation disapplied the law of agency. Held, allowing the appeal, that: 1. the secondary legislation (the Housing Benefit (General) Regulations 1987 and the Housing Benefit (Recovery of Overpayments) Regulations 1997) demonstrates a clear intention to include an agent within the definition of landlord, effectively without distinction (paragraph 20); 2. the reference to “person” in section 75(3) must be taken as being wide enough to encompass both a natural person and an incorporated company (Schedule 1 to the Interpretation Act 1978) and both a landlord and an agent, and therefore the secondary legislation is intra vires and entitled to treat the landlord and his agent interchangeably by virtue of the primary legislation (paragraphs 22 to 24); 3. the overpayment was therefore recoverable from the agent notwithstanding that it might have accounted to its principal, the landlord, for such sum or part of it (paragraphs 1 and 24).
Decision(s) to Download: R(H)_10-07_bvam.doc R(H)_10-07_bvam.doc