Reply To: Underlying entitlement where claimant has permanently moved away


I must say I do not fully understand your argument. Since a change in 2012 UE has also applied to a partner, provided they the partner were living at the property before and after. It is not a claim, merely a reduction in the amount of the net overpayment. As such it really helps the LA rather than the claimant or partner. Full subsidy is payable on that difference. Local Authorities pressed for that change in the regs.

So your argument it seems and if I understand (in effect reducing the amount of subsidy you can claim) is that the claimant moved to a new home at some stage and that this omission to report this change somehow overrides the part of 104 that applies to the partner. I struggle with that. A person imprisoned for 20 years…..sounds like a very serious offence. When did the prison become home and from what date was there a duty to notify and by whom. Because of the suspected offence the person may have been on remand for some time.

The other issue is full recovery from the landlord. I do not think you can decide on this at this stage. It seems from what you have said you have decided that both the landlord and the claimant are liable to repay. Thus both need to be involved in an appeal (somehow). Certainly I think it is arguable that the partner does.

Aften any appeal you can then decide who to enforce the OP against. Enforcing the full amount against the landlord is fine. That bit is where there is no right of appeal to a Tribunal. But you seem to have made that decision too early.

“The problem seems to have been caused by local authorities deciding from
whom they would recover an overpayment before issuing any decision as to

This is para 59 in R(H) 6/06.

So getting the procedure correct is important. What if you dont? Again 6/06 helps:

“If, contrary to that suggestion, a local authority issues a decision against only
one of, say, two people from whom an overpayment is recoverable, it seems to us
that, on an appeal, the appellant will be entitled to a finding that he or she is not the
only person from whom the benefit is recoverable. However, the tribunal will not be
entitled to make a decision against both people because the other will not have been a
party to the proceedings. Consequently, the tribunal will be limited to setting aside
the decision under appeal and leaving it to the local authority to make another”

It might be that the Judge or any rep does not know about this caselaw but it would be the first thing I would be doing if I was representing the landlord. Even if, on the face of it, the matter was just about the LA interpretation of reg 104.

I do think you need to consider who should be included in this appeal if nothing else.