Terms & Conditions

[sajadmir]

I have a case where the claimant left the claim address in January 2020, it was not until October 2020 that we found out, he did not notify us when he left, therefore straight forward failure to notify a change, overpayment recoverable from him.

However in February 2020 the partner, who remained in the property submitted her own BACS details to the us, our payments team switched the HB payments to her.

In April 2020 the PT applied for Housing Costs in UC and is still being paid.

So she was getting HB from us, and HCE from DWP!!!!

The DWP records for the CL only show a change of address from March 2021.

The LL is trying to evict as he hasn’t had rent in a year and in his correspondence with the authority he maintains ‘they’ are still resident.

The CL in his appeal purports that he has split with her and it wasn’t good, so doesn’t have contact.

My question is can the PT be made a party? and the overpayment recovered from her?,

Where she was not a person who was required to notify the change, she was a person to whom HB was paid, and given she did this in February 2020 she is a person who misrepresented or failed to disclose a material fact, so HB 2006 101(2), my colleague disagrees on this and believes the buck stops at failed to notify and only the CL was required to do so.

[peterdelamothe]

Yes in principle. If you decide she is liable (and she was getting HB paid direct) you must send her a decision in her name only (NOT joint names) giving her the right of appeal.

It becomes trickier as from what date the OP is recoverable from her. I think the Feb 2020 date is more realistic but there might be an argument from earlier.

Note that BOTH claimant and partner will be liable, both will have a right to put their case at a Tribunal and set out their case but if both are deemed to be liable it will then be up to the LA to enforce as they wish. So you could ask the partner to pay the full amount back or vice versa (your discretion not appealable).

Note the decision 6/06..on hbinfo…..that confirms that in a joint liability case, if only one of two liable persons (say) is invited to a tribunal, the ONLY option for the judge is to quash the council decision and tell them to go away and make another decision ensuring both parties are invited to the hearing and are given their chance. In this instance BOTH the former couple must be a party to any appeal by either of them. Could get tricky if they left on bad terms!

The only other issue…..is the fact that UC housing costs was paid at the same time relevant? Did that bring the claim for HB to an end? Probably but I am minded of all the fraud at the time with stolen identity etc during Covid. Billions of pounds wrongly paid out etc.

[peterdelamothe]

On the last point, why was the payment switched to the partner and was any permission sought from the claimant to do so? Did the payments team not think “hold on, if there has been a change in circs, HB might have to end”.

My additional argument if I was the claimant rep would be that this was an “official error”. Could he have known if he had moved out and the payment was being made to her? Do you tell him?

Lots to ponder here and this is all rather messy!

[peterdelamothe]

CH/4234/2004

See paragraphs 59 to 61.

[sajadmir]

Absolutely Peter very messy, unfortunately, our payments team did not refer the request to change BACS to a decision maker so official error could be argued.

We continued only to notify him of HB entitlement at the claim address (we didn’t know he was gone)

He had gone, no longer seemingly bothered about the property, his PT.

The HB payments stopping in Feb 2020 t his account, meant that he was even less likely to care or tell us he had left/stop HB.

In July 2021 a decision maker did pick the BACS change up, and re-notified him and her separately of the overpayment being recoverable from each one.

She has not appealed, he only appealed (found out about the decision) when we started deducting the ovp from his wages.

He now asserts the PT always had all control over even his bank account, and he didn’t see a penny.

My submission to tribunal is going to be a headache to write….

[Peter Barker]

Really interesting case. If the overpayment is recoverable from the partner, it would be because she either failed to disclose a material fact or misrepresented the facts. Anyone can misrepresent facts, but you can only fail to disclose if you are under a duty to disclose. Duty applies to claimant and anyone receiving HB payments on their behalf.

Did she misrepresent any facts by providing new BACS details? Was there something she said that was untrue?
Once she started receiving the payments, did she fail to disclose any facts? There were no changes of circumstance during her time as HB payee, so no new facts to report, but was she under a continuing duty to disclose the fact that the claimant had already left the property? I think you could probably make that argument.

Her UC claim wouldn’t have terminated his HB because he wasn’t the UC claimant, but that is academic as his HB should have ended long before then.

I’d be arguing it’s recoverable from him only down to February, and from both of them thereafter on the basis that they had both failed to disclose material facts (in her case the fact already existed before she was paid HB, but I’d argue she still had a duty to disclose it once the payments to her started). Any official error by the person who handled the change of payee details was caused or contributed to by their failure to disclose so it won’t satisfy Reg 100.

[peterdelamothe]

Yes I still think recoverable even if the Tribunal deems if official error…..it just adds to the complexity. Even though she has not appealed, she must still be invited to the Tribunal and sent a copy of the papers etc. The Tribunal might well agree with Peter B that both are liable (much better for the OP team) but the Judge cannot make such a decision unless she is there and has had a chance to explain why she disagrees etc.

I think this should be a hearing face to face btw. Very difficult to do on zoom.

[sajadmir]

Thank you all for your input, very helpful, gives us something to go and get a result hopefully.

[CGoodall]

Hi, I thought I’d jump in on this post for some advice please.

We have an appeal against a HB overpayment of £127k spanning 2009 to 2019. We found out that the claimant’s husband was the owner of the property and he had been living there throughout the period and working full time – the claim had been made on the basis that she was a single parent who was working part time and she had declared that she was not related to the landlord. The claim has been cancelled from the outset and the claimant billed for the o/p. The HB payments were made direct into her bank account. We have sent a fraud referral to DWP but have no idea whether they are following it up.

The claimant has appealed on the grounds that she never made the HB claim and that her husband (from whom she is now separated) stole her identity and made a fraudulent claim in her name. She states he also made a fraudulent claim for Tax Credits in her name, that her employment documents were falsified and that he had control over her bank account and she never saw the HB payments going in or had any access to the account. She states she has been a victim of domestic violence, coercive control and financial crime. She has supplied proof that she is being assisted by the CAB and a women’s refuge and has now been housed out of the area.

The next stage is for the appeal to go to tribunal. In the absence of any proof that her husband did indeed make a fraudulent claim in her name, is our only option to proceed on the basis that she made the claim and received the HB? Would we need a conviction against her husband in order to make him a target for recovery? Is this a tripartite appeal? The claimant has asked that we don’t send any paperwork to her old address as she is divorcing her husband.

I’m not quite sure where we go from here. We normally get these kind of overpayments as a result of a fraud investigation/IUCs etc but in this case there has been no fraud investigation and we don’t even know whether the DWP will investigate the allegation.

Thanks in advance for any input/suggestions. Has anyone come across a case like this before?

[John Boxall]

I would suggest that on the basis that ‘He(sic) who asserts proves’ you ask them to provide evidence to support this contention.

I might also add that I believe that there is a version of VEP that DWP staff and perhaps your fraud liaison have access to that provides more than a years worth of earnings details and it may be possible to ask someone who has access to interrogate that and see what it comes up with.

Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

Wilkins Micawber, Ch12 David Copperfield

[peterdelamothe]

This sounds like innocent misrepresentation. Which means the HB is still recoverable. I am not sure what the grounds of appeal are here….she is saying that she is the victim of fraud and I can understand that is a reasonable possibility.

But that means she is asking you to use your discretion not to recover the overpayment. You can decide to write off the overpayment if you wish …but this is outside the jurisdiction of a Tribunal. They cannot intervene.

So far as I can see it, you have made the right decision. There is an overpayment, there is no official error. The grounds are innocent misrep. Without any evidence that her husband made a fraudulent claim….and the onus here is going to be very high and on her…..this is not a stranger after all.

Even if you had evidence that the partner was dubious etc, what then. The money was paid to the appellants bank account. The partner should be arrested if the DPP thinks there is a case to answer and Proceeds of Crime Act may apply etc. But again I struggle to think of anything a Tribunal can do that is within jurisdiction.

[John Boxall]

If she can demonstrate that she is a victim of fraud and had nothing to do with the claim then surely the OP isn’t recoverable from her as she was neither the claimant or the person to whom the money was paid

Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

Wilkins Micawber, Ch12 David Copperfield

[peterdelamothe]

But the monies were paid into her bank account John. For ten years. In her name. Even if the husband intercepted bank statements and payment for ten years and stopped her having any access in branch or online I fail to see how a tribal can decide that a “person unknown” is liable for the debt without very compelling evidence. A Tribunal could try to invite the husband I guess but if he merely states “I have not been prosecuted; we shared everything for many years. I know nothing about a HB claim”. A Tribunal cannot make up the facts or direct the Council to write off a huge debt. As said, the Council may themselves decide to write off the debt but the “I know nothing about this” defence very rarely has worked where family is involved let alone husband and wife…unless there has been a successful prosecution and not even then very often.

[John Boxall]

Well, let us wait and see what she can come up with, clearly IF there is a prosecution etc then possibly a Proceeds of Crime Act Order might resolve the situation

Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

Wilkins Micawber, Ch12 David Copperfield

[CGoodall]

Thank you both for your input. I might add at this point that her claim record shows that she spoke to our staff on the telephone on a couple of occasions, so unless her husband got a female to impersonate her on the phone it’s not looking good. Also she made a claim for UC for both of them in November 2020 but didn’t qualify because of his earnings. I’m going to ask again for proof of any police investigation or findings of fraud on the part of her husband by HMRC, but in the absence of anything concrete, it’s going to have to go to tribunal because there is no way we will write off £127k without proof of fraud/identity theft.

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