Readers will be aware that, once an assessment of income and capital has been made for income support (IS) purposes so that a claimant is entitled to IS, a housing benefit (HB) authority is generally bound by that decision so that HB should follow automatically.  In GB v Hillingdon LBC [2010] UKUT 11 (AAC) (reported in this month’s Legal Action at 9-10), Judge Wikeley had to consider a factually and legally complex claim made by Hillingdon that it had made an overpayment to GB, the decision of the First Tier Tribunal being manifestly wrong.  Judge Wikeley sent the matter back to the first tier tribunal for a re-hearing with his views on a number of different points concerning when the link between IS and HB assessments can be broken.  It is, I think, an important decision, one which Hillingdon seems to have spent quite a number of years arguing towards (largely unsuccessfully), but also one which, as Judge Wikeley observed (at [30]), has left some gaps.  Rather than detail the complex (and undecided) facts, this note addresses the first, and most significant, issue in the appeal about breaking the link.  However, there is one fact of importance: the DWP had not, in this matter, reconsidered their decision (although they had taken some part in the fraud investigation against GB) but, rather, were inactive because relevant records had been archived, leaving Hillingdon “clearly frustrated” ([18]).

In general, all parties accepted, as indeed they had to, that an HB authority cannot go behind an assessment of income and capital for IS purposes for the period of such an assessment.  A person in receipt of IS is deemed to have no income and capital for HB purposes (Schs 4 & 5, HB Regs 2006; R v Housing Benefit Review Board of Penwith DC ex p Menear (1991) 24 HLR 115; R v South Ribble Borough Council ex p Hamilton (2000) 33 HLR 104).  Nevertheless, when there has been fraud on the IS authority’s assessment, that can vitiate that assessment.  And, where the IS and HB assessment authorities have “parallel and individual decision-making powers (eg on deciding family status), the HB authority is not bound by the IS assessment especially where that assessment did not “represent a considered view” (R(H) 9/04, as interpreted by Judge Wikeley at [25]-[26]).

Where there has been a mere allegation of fraud that is unproven at the date of the HB assessment but which the IS authority is “actively looking at”, it has been said that Hamilton needs to be read with caution, eg where the IS assessors have concluded that there is no basis for withdrawing entitlement or has been overturned on appeal.  Where the IS assessors are considering what action to take, that is a decision for them and not the HB authority (CH/4014/2007, citing CPAG’s excellent commentary, at [22]-[24]).  Judge Wikeley shared the reservations of others about that proposition, eg in the context of a relationship status claim, but did not need to resolve that in this appeal (at [30]) which concerned an alleged fraud about the ownership of real property.

In this case, the DWP was inactive and it did not concern relationship status.  The correct approach was (a) to work out the precise periods for which IS had been awarded; (b) recognise the default position, ie IS entitlement = HB entitlement; but (c) “… if the local authority can show on the balance of probabilities that the income support awards at the material times were obtained by fraud or dishonesty, then it can show that the award of income support underpinning the awards of housing benefit and council tax benefit was vitiated by such fraud or dishonesty (ex p. Hamilton)” [33].  No evidence of a successful prosecution for fraud was required and the appropriate standard of proof was the ordinary civil standard.

Point (c) essentially involves a two stage test (although a decision either way taken by the DWP on the allegations will effectively decide the case).  Where the IS authority don’t take a decision (“e.g. because their relevant records have been destroyed, or the evidence that they do have on file is at best ambiguous and insufficient to justify a revision”: [43]), it is open to the HB authority to pursue their claim but this “may not be straightforward”:

[The HB authority] would have to show that the income support award(s) had been obtained fraudulently or dishonestly.  The local authority may or may not have access to the claimant’s income support claim forms and review forms.  There are, of course, information-sharing powers applying to the exchange of such evidence between public authorities, which the local authority may wish to explore.  Even if the relevant documents have been destroyed by the DWP, it may be possible – with care – to draw certain inferences as to their contents; but equally it may not actually be feasible to reconstruct the contents of the missing documents. [44]

Further, the HB authority would have to show that the claimant owned property which excluded her from entitlement at all material times, that the award had been obtained by fraud or dishonesty, and continuance of IS had been secured in bad faith ([45]).

He remitted the matter to the first tier tribunal for consideration with some non-binding comments on the facts.  I wonder if Hillingdon will appeal …