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Neutral Citation Number: 2009 UKUT 247 AAC
Reported Number:
File Number: CH 761 2007
Appellant: Walsall Borough Council
Respondent: GP LTD and Others
Judge/Commissioner: Judge J. Mesher
Date Of Decision: 26/11/2009
Date Added: 04/01/2010
Main Category: Recovery of overpayments
Main Subcategory: other
Secondary Category:
Secondary Subcategory:
Notes: Reported as [2010] AACR 16 Recovery of overpayment – overpayment of housing benefit paid direct to landlord’s agent – whether recoverable from landlord as well as from agent The claimant was entitled to housing benefit on the basis of his entitlement to income-based jobseeker’s allowance. Payment was made direct to the landlord’s agent (GP Ltd). In July 2004 the claimant ceased to be entitled to income-based jobseeker’s allowance, but failed to inform the local authority. In April 2005 the local authority became aware of the cessation of income-based jobseeker’s allowance and in June 2005 GP Ltd informed the local authority that the claimant had vacated the property with effect from 27 May 2005. The local authority decided that benefit had been overpaid from 2 August 2004 to 10 July 2005 and sought to recover the overpayment from GP Ltd. An appeal tribunal allowed GP’s appeal, finding that the overpayment was received by the local authority in its capacity as agent for the landlord, not as a principal and concluding that GP Ltd was not therefore “the person to whom it was paid” within the meaning of section 75 of the Social Security Administration Act 1992 (SSAA). The local authority appealed to the Social Security Commissioners, whose functions by the time the appeal was heard had been transferred to the Upper Tribunal (Administrative Appeals Chamber). It was common ground before the Upper Tribunal that, following R(H) 10/07, under the legislation in effect prior to 10 April 2006, if a local authority makes payments of housing benefit to a landlord’s agent that turn out to have been overpaid, the overpayment is recoverable from the agent under section 75(3)(a) of the Social Security (Administration) Act 1992. The issue was whether, in those circumstances, it can and must also be made recoverable from the landlord, as well as the claimant, unless the landlord personally can show an exception from liability. Held, allowing the appeal, that: 1. the extension to the definition of “landlord” in regulation 93(1) of the Housing Benefit (General) Regulations 1987 (95(1) of the Housing Benefit Regulations 2006) to include inter alia agents has the effect of directly authorising payment to an agent expressly or impliedly authorised to receive rent from the tenant in question, and the claimant’s specific nomination of GP Ltd as the person to whom he wanted payment of benefit to be made, which would on the face of it bring the case within regulation 92(3) (94(3)), must give way to regulation 93(1) (95(1)) (paragraph 19 to 21); 2. under general principles of the law of landlord and tenant and of agency, the payment of housing benefit to an agent under regulations 93 and 94 (95 and 96) goes to discharge the claimant’s liability to the landlord and in those circumstances the housing benefit has been paid not only to the agent, as decided by R(H) 10/07, but also to the landlord so that where the local authority was authorised to make payment in the way it did only by virtue of the relationship of agency between the landlord and the agent, payment to the agent would also constitute payment of housing benefit as such to the landlord (paragraphs 22 and 23); 3. the reference in section 75(3)(a) of the SSAA to “the person to whom” benefit was paid does not require that only one person can be regarded as having had benefit paid to them for the purposes of section 75(3)(a) and recoverability as the use of the word “the” and the context of the Social Security Administration Act 1992 is quite insufficient to displace the presumption under section 6(c) of the Interpretation Act 1978 that the plural was included in section 75(3)(a) (paragraphs 24 and 25); 4. the overpayment in the present case was legally recoverable from GP Ltd and the landlord under section 75(3)(a), since neither of them escaped liability under regulation 101(1), as well as from the claimant under section 75(3)(b) and regulation 101(2)(c) of the 1987 Regulations (paragraphs 28 and 32).
Decision(s) to Download: [2010] AACR 16 bv.doc [2010] AACR 16 bv.doc