The claimant and her partner claimed universal credit. After they became homeless, the local authority placed them in temporary accommodation in a homeless families unit. The rental costs for such accommodation fell outside the universal credit regime and were instead funded by housing benefit. Although that was usually a means-tested benefit, the claimant was “passported” to full housing benefit entitlement, disregarding her earnings and income, by virtue of paragraph 12 of Schedule 4 and paragraph 4 of Schedule 5 to the Housing Benefit Regulations 2006 which applied where a claimant was “on universal credit”. The local authority subsequently discovered that the claimant had in fact received nil payments of universal credit for five consecutive monthly assessment periods during the relevant time. It concluded that the nil payments meant that the claimant was not entitled to, or in receipt of, universal credit for the relevant period and that she had therefore been wrongly passported to full housing benefit entitlement for that period. It sought to recover the overpayment from the claimant on the basis of her failure to inform it that she was no longer entitled to universal credit. Allowing the claimant’s appeal, the First-tier Tribunal held that the effect of regulation 2(3B) of the 2006 Regulations, stating that a person was “on universal credit” on any day in respect of which they were “entitled to universal credit (whether it is in payment or not)”, was that the claimant was on universal credit since she was entitled to that benefit, even though she was in fact paid nil for the five assessment periods in question. It concluded that there was accordingly no overpayment of housing benefit to be recovered.
On appeal by the local authority—
Held, appeal allowed. Under the relevant legislation, namely sections 3 and 5 of the Welfare Reform Act 2012 read with regulation 17 of the Universal Credit Regulations 2013, it was a condition of entitlement to universal credit that a claimant met the financial conditions, which could only be satisfied where the claimant’s income was such that an award of at least one penny of universal credit could be made for the assessment period. Since there could be no entitlement to universal credit without an award of at least one penny, the statutory provisions made it clear that there could not be an entitlement to a nil amount or nil award of universal credit. It followed that the claimant’s nil payments of universal credit during the relevant assessment periods showed that in law she was not entitled to universal credit at that time. The First-tier Tribunal had therefore erred in law in concluding that the claimant was entitled to universal credit during the five assessment periods when she had “nil” awards and payments and that she was “on universal credit” during those periods. In consequence, it had been wrong to decide that the claimant had not been overpaid housing benefit for the period in issue (paras 36–38, 41).
Per curiam. The language used by the Department for Work and Pensions in screen prints from its system is misleading in so far as it refers to a “current award” with a payment of “£0.00”. Equally misleading is the wording of its notification to a claimant with a nil award, which refers to “What you’re entitled to”, such language being inapposite where the true legal position is that the claimant is not entitled to universal credit. Given the real potential for confusion and for claimants being materially misled, there seems no good reason why the true legal position cannot be set out both in the screen prints and in letters and notices issued to claimants. All that would require is the use of language such as: “You are not entitled to universal credit for this assessment period because, for the reasons we explain further below, your income is too high” (para 43).
Wal Callaby, appeals officer, for the local authority.
The claimant in person.
Denis Edwards (instructed by Treasury Solicitor) for the Secretary of State.