Reply To: Method of o/p recovery

#9014
Anonymous
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A pre -existing overpayment may be recovered from arrears of benefit, but it does not have to be . In other words the Council has a discretion and it must be exercised reasonably.

One factor to be taken into account is the reason for the accrued arrears. If those arrears arose as a result of an error by the Council, or as is common becuase the Council did not decide the claim within the statutory period, it would be unjust for the overpayment to be recovered as a lump sum from the arears as this would mean that Councils may profit from their own maladministration.

I think that Council should resore the staus quo and give effect to the proper exercise of discretion and not recover at a rate above the statutory maximum.

The question of stopping an overpayment before it goes out is an intersting one because the Council must have grounds under the revision/supersession rules to change the decision that has already been notified. The only ground open to the Council in the circumstances is that of official error.

Findlay suggests that the Court of Appeal in Haringey LBC v Cotter 29 HLR682 at 689 imply that there may be a public law duty to make payment once a decision has been made and notified. If that is the case, then the LA would be oliged to pay, then revise its decision. The resulting overpayment may not be recoverable

You were in any case obliged to notify the amount of any deductions made either from arrears of HB or from ongoing entitlment. That breach only serves to reinforce any Cotter argument.