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Neutral Citation Number:	2014 UKUT 201 AAC
Reported Number:
File Number:	CH 2605 2013
Appellant:	MB
Respondent:	Christchurch BC (HB)
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	02/05/2014
Date Added:	20/05/2014
Main Category:	Housing and council tax benefits
Main Subcategory:	recovery of overpayments
Secondary Category:	Recovery of overpayments
Secondary Subcategory:	other
Notes:	Reported as [2014] AACR 39 Housing benefit – recovery of overpayments – shared care – whether failure to ask for child’s usual address official error The appellant had shared care of her son for whom she received child benefit. However, in accordance with a residence order made in 2009, he resided with his father for a greater proportion of the time. In September 2010 the claimant applied for housing benefit (HB) and council tax benefit (CTB), having entered her son’s details into the section relating to “children in your household” on the claim form provided by the local authority. She was awarded benefit on the basis that her son was a member of her household. The local authority became aware of the residence order and in April 2012 it asked the appellant if the arrangements remained the same. The claimant confirmed that her son still resided with his father for most of the time. In June 2012 the local authority decided that the son should not be included in the appellant’s HB claim. A First-tier Tribunal (F-tT) upheld this decision. The local authority then decided that the appellant had received a recoverable overpayment of HB and excess payments of CTB between 23 April 2012 and 11 June 2012 (although not for the earlier period). The claimant appealed and another F tT found that there had been no official error on the part of the local authority and the overpayment was therefore recoverable. The claimant appealed to the Upper Tribunal (UT) and among the issues before it was whether failure by a local authority to ask for confirmation of a child’s usual address on its claim form amounted to an official error under the Housing Benefit Regulations 2006 (the 2006 Regulations). Held, allowing the appeal, that: 1. regulation 86(1) of the 2006 Regulations required claimants to provide information “as may reasonably be required by the relevant authority” and this placed an onus on the local authority to ask the right questions on an initial claim for benefit: Kerr v Department for Social Development [2004] UKHL 23, reported as R 1/04 (SF), (paragraphs 39 to 41); 2. the question of whether the omission to ask a particular question on a standard claim form amounted to “official error” was very much a question of fact and degree. In this case the local authority’s failure to seek confirmation of the child’s usual address was an “official error” for the purposes of regulation 100 of the 2006 Regulations; the shared residence of children after divorce or separation was now commonplace, and no longer an exception (paragraphs 48 to 49); 3. the F-tT’s decision involved errors of law as, among other things, it overlooked regulation 86(1) of the 2006 Regulations, wrongly assumed that it was the claimant’s responsibility to produce information not requested by the local authority and neglected the underlying issue by misdirecting its inquiry towards considerations surrounding the shared residence order (and not the inadequacy of the claim form) (paragraph 51); 4. the appellant was not responsible for the local authority’s official error and nor could she have reasonably been expected to have realised that she was being overpaid (paragraphs 53 to 57). The judge re-made the F-tT’s decision, finding that the overpayment was not recoverable.
Decision(s) to Download:	[2014] AACR 39bv.doc