HBOP is it recoverable?

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  • #281794
    liffe
    Participant

    Looking for some advice please. HBOP was created in May 2021 going back to January 2020. The situation is this: We had a claimant in receipt of JSA, he was in a property that we as the LA always treated as supported accommodation because it always appeared on the Supported Accommodation list every year in respect of rent increases from the Housing Association. The tenancy agreement received never confirmed any support/exempt charges, but we as the LA treated it as supported purely because it was appearing on the Supported accommodation lists. In January 2020 the claimant moved from JSA to UC, however, as the rent details continued to be received from the HA on the supported accommodation list we continued to treat the address as supported and therefore we continued to pay HB. The claimant did contact the LA in February 2020 and state the property was not supported/exempt accommodation, however this was not questioned with the HA and LA continued to award HB. It was in May 2021 that it came to light that the property was not supported/exempt therefore the LA cancelled HB all the way back to when UC commenced in January 2020 and created an overpayment of over £7k. It has been classified as Claimant Error and as payments were made to the HA, the HA was invoiced. The invoice has been paid by the HA but they are now recovering the overpayment from the claimant. the claimant would have recived the Housing Costs within his Universal Credit payment, but some of the letters the LA have issued inform the claimant that he is entitled to HB although UC in payment, but no details are mentioned about the fact that the reason is because the LA are treating the property as supported. The claimant states the HA were made aware that his income had changed from JSA to UC from January 2020. My questions are:

    1. are the LA classifying the HBOP incorrectly because they did not follow up the claimants information in Feb 2020 that the property was not supported.

    2. If the claimant informed the HA that his income had changed, should the HA have contacted the LA to state HB should not be in payment as the address the claimant is resident in is not supported/exempt.

    3. The claimant would have received detailed UC notification letter confirming Housing Costs within UC, would he not have known that was for him to pay his rent directly to the HA, yet it was being covered with HB (and therefore he was receiving 2 lots of payments for rent).

    4. Just don’tt know whether we should have made the HBOP LA error but recoverable as the claimant received HB and Housing Costs or whether it should be LA Error and not recoverable because LA did not follow up information from claimant confirming property was not supported.

    5. Whether HBOP should be other (HA responsible) as was aware from claimant that he was in receipt of UC and would/should have known HB should not be in payment as property not supported/exempt.

    There is a solicitor now involved stating the HBOP is official error and should not be recovered.

    Your help would be greatly appreciated.

    #281795
    Peter Barker
    Keymaster

    “It has been classified as Claimant Error and as payments were made to the HA, the HA was invoiced.” This makes no sense, if it is claimant error then it’s recoverable from the claimant instead of the HA.

    However, it clearly isn’t claimant error is it: the claimant disclosed that he was on UC and that he believed this meant he was no longer entitled to HB. On the face of it, failure at least to investigate that is LA error; however, it seems to me that the HA definitely contributed to any LA error by including the property on the supported housing schedule. This means that the Reg 100 definition of official error is not satisfied (person receiving payments of HB caused or contributed to the error). Instead, the overpayment is recoverable from the landlord as they received the money and misrepresented the facts. The claimant should be in the clear.

    It was therefore correct to invoice the landlord. Whether it’s correct for them to recoup the money from the tenant is another matter, but that’s a private issue between them.

    #281803
    liffe
    Participant

    thank you Peter, we did invoice the LL and they have paid the LA in full, but because they are recouping it from him, he has involved a solicitor and the solicitor is asking the LA to change its decision and mark the OP as LA error as the claimant informed the LA that the property was not supported and therefore the solicitor states the LA failed to follow this up therefore is LA error.

    I agree the overpayment classification should not be claimant in the first instance as the claimant did not contribute to the HBOP and wasn’t even aware it was occurring.

    The solicitor is stating that if the decision is not changed by the LA he will have to alternative but to look to take the matter to Court. The Solicitor is aware the HA have paid the invoice in full and the HA have not disputed the HBOP of over £7K, the problem has arisen that the HA are now trying to obtain the overpayment amount from the claimant.

    #281806
    Kay_Tade
    Participant

    Your problem is that you have said this was claimant error, so a right of appeal is attached. As PB said this is obviously LA error, the problem is the notification, you can’t get away from that until you get to a tribunal and say “sorry” we didn’t really mean to issue that letter. I have been there a couple of times in the last 18 months, won both cases but it was just a very tedious thing. Lucky the HA has already paid up so you just need (If it isn’t out of time and a tribunal are not going to decide they want to hear it) to address it as such. The solicitor is wasting his time as far as I can see.

    [2021] UKUT 256 (AAC)
    https://assets.publishing.service.gov.uk/media/617bf7fbd3bf7f5603ecf14a/CH_1041_2020-00.pdf

    #281808
    liffe
    Participant

    thank you Kay, initially we did state it was out of time as it was outside the 13 month period, but because the the Solicitor wants the OP basically LA error unrecoverable and states as it is official error the decision may be revised “at any time”. The decision was made 22.05.2021 and appeal has been received 16.12.2022. thank you for the link to tribunal case.

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