Reply To: Adverse Inference and Overpayments

#163908
dayglow
Participant

First of all I would say that you have not terminated the appellant’s entitlement, you have revised your decision using an adverse inference, and the effect of that decision is that the appellant is no longer entitled for the period a-b, which has resulted in an overpayment of X.

Regulation 86(1) requires a person who makes a claim to furnish such certificates, documents, information and evidence in connection with the claim or the award, or any question arising out of the claim or the award, as may be reasonably be required by the relevant authority in order to determine that person’s entitlement to, or continuing entitlement to housing benefit.

Paragraph 79 of Reported Tribunal of Commissioners’ Decision R( H ) 3/05 states:

“An administering authority is therefore required to inform a claimant of the information and evidence he should provide and it is for the claimant to supply such information or evidence as best he can. Where a claimant fails to provide information or evidence he can reasonably be expected to provide, there is no express sanction – but an inference may be taken against him and the case or the relevant issue may as a result be determined against him. Where the claimant is unable to supply information or evidence, the duty to obtain it may pass to the administering authority (under the principles expounded in Kerr). The authority must, of course, always act not only in accordance with the regulations governing the benefit but also reasonably. However, where the administering authority has done all that can reasonably be expected of it in seeking information and evidence, it will always be open to it to make a decision on the claim, making such adverse inferences against a claimant for any failure to disclose that are reasonable and proper. If the information and evidence are insufficient to show that the relevant conditions of entitlement have been satisfied, then the claim will be refused. All of this is well established in Commissioners’ jurisprudence, but helpfully and succinctly confirmed in Kerr (see especially Lord Hope at [13]–[17] and Baroness Hale at [56]–[63]).

Therefore if the authority has written to the claimant to request the evidence to establish if there is an ongoing entitlement, and this evidence is not forthcoming, then as the authority is required under regulation 89 to make a decision, as stated in R ( H ) 3/05 “…However, where the administering authority has done all that can reasonably be expected of it in seeking information and evidence, it will always be open to it to make a decision on the claim, making such adverse inferences against a claimant for any failure to disclose that are reasonable and proper. If the information and evidence are insufficient to show that the relevant conditions of entitlement have been satisfied, then the claim will be refused. All of this is well established in Commissioners’ jurisprudence, but helpfully and succinctly confirmed in Kerr (see especially Lord Hope at [13]–[17] and Baroness Hale at [56]–[63]).”

Hope this helps.