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Gateshead Council v Frederick Avery (HB): [2026] UKUT 214 (AAC)

Upper Tribunal Administrative Appeals Chamber decision by Judge Markus on 04 June 2026.

From:
HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
Published
22 June 2026
Categories:
Housing and council tax benefits
Sub-categories:
Housing and council tax benefits - recovery of overpayments
Judges:
Markus, K
Decision date:
4 June 2026

Read the full decision in UA-2025-000425-HB.

Judicial Summary

The Claimant had taken a planned holiday abroad of over 4 weeks. He had not notified the Council of his absence and was paid housing benefit for that period, although he had not been entitled to it. It was common ground that this was an overpayment. The Council decided the overpayment was recoverable and the Claimant appealed to the First-tier Tribunal (FtT) which decided that there had been no overpayment.

On the Council’s appeal to the Upper Tribunal, The Upper Tribunal decided that the FtT had erred in law in that it was accepted that there had been an overpayment but that the FtT had failed to address whether the overpayment was recoverable. Instead, it had considered whether the Claimant had failed to notify the Council of a relevant change of circumstances.

The Upper Tribunal remade the decision. It decided:

  1. The information provided by the Council pursuant to the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, regulation 71 and Schedule 8 paragraph 9(1)(g) as to the kind of changes of circumstances to be notified was misleading and amounted to an “official error” within the meaning of regulation 81.
  2. The overpayment arose “in consequence of” the official error.  The Claimant had not been at fault and it was likely that, if the Claimant had been provided with clearer information, he would have notified his absence as a change of circumstances or alternatively would have absented himself for a shorter period.
  3. The Claimant had not caused or materially contributed to the error.
  4. The Claimant could not at the time of the payment or notice relating to the payment reasonably have been expected to realise that it was an overpayment. This was the unchallenged finding of the FtT and the Upper Tribunal agreed. A lay person could not be expected to know the complex rules regarding occupation of a dwelling.
  5. Therefore the overpayment was not recoverable.

Updates to this page

Published 22 June 2026