Reply To: Overpayment caused by claimant’s death – recoverability under Reg 101(2)

nick dearnley

I would respectfully suggest that the tribunal has made an error, in that, as Peter pointed out earlier, s75 makes all overpayments recoverable from the person who was paid.  Reg 101 only operates to protect the payee where there was an issue caused in specific circumstances by someone else that led to the overpayment.  And in any case, 101 as you quote says recoverable from "such other person, as well as or instead of the person who was paid."  That clearly allows recovery from the LL under s75, to me, as they were the payee.  If your quote from the decision is right, then the tribunal has missed out "..or instead of…" and has misinformed itself of the law, making an error in law and the decison should be set aside.

There is much caselaw on overpayment recovery, including R(H ) 6/06 which sets out how notices etc should be done.  It does this because once it is established that the overpayment may be recovered from someone else as well as the payee, the choice as to who to go for is in the authority's discretion, and that discretion is not appealable.  The targetted parties will, of course, have a right to appeal that the overpayment is not recoverable from them.

Practically, your overpayment is recoverable from both the LL as payee and the claimant.  You can then choose which.