Terms & Conditions

[Anonymous]

A dependant turns 18 May 05. This is not notified to the authority by the customer but is later picked up on a report. Not picked up at the time for various reasons that I won’t go in to. I,m sure you can all sympathise!!

Would you classify the ensuing overpayment as LA error or claimant error?

Your opinions would be appreciated.

[Stalbansbenefits]

Why is there an overpayment?? If the dependant is still a dependant the benefit shouldn’t have changed.

[gerryg]

I sssume that you mean the son should attract a non-dep deduction from the age of 18 hence the overpayment.

The claimant is under no duty to report his son’s 18th birthday – Reg 88(3)(b)

LA error I’m afraid

[Anonymous]

Agree with St Albans, and I would add that the claimant is not under any duty to report that a dependant has turned 18.

If the dependant was already a non-dependant before reaching 18, then a deduction would start to apply after the 18th birthday; any overpayment might be claimant error or LA error depending on the facts. A summary of some key issues that might affect your decision:

– when a dependant child ceases to be dependant at any time between the ages of 16 and 20 the claimant must tell the Council – because it could happen at more or less any time in that four-year period and the Council has no way of predicting it
– in a “standard” (non-IS/JSA-ib/GC) case, the very fact that a dependant child is no longer dependant will reduce the applicable amount, so if you haven’t been told about the change there is going to be a claimant error overpayment
– if the dependant was already over 18 at the time when s/he ceased to be a dependant, a non-dependant deduction is likely to apply instantly, including in IS/JSA-ib/GC cases, and so if the claimant does not tell you about the change there is going to be a claimant error overpayment
– if the dependant was under 18 when s/he ceased to be dependant, there is no immediate effect in an IS/JSA-ib/GC case BUT if you have still not been told about this by the time the fledgling non-dep reaches 18 there will be an overpayment and the cause is more likely to be claimant error than Council error because you weren’t told that the person was no longer a dependant (although the 18th birthday of any household member is a good time for an intervention I always think, and welfare rights advisers would scrutinise your forms, letters and leaflets for any hint that the claimant was misled into thinking there was nothing to report when their child ceased to be dependant). [b:b47d6df541]Chez, is this what happened in your case?[/b:b47d6df541]
– if the Council already knew that a child had become a non-dep and the only thing that has changed is that the non-dep has reached age 18, any overpayment must be official error because nothing else has happened apart from the 18th birthday, which is a non-reportable change [b:b47d6df541](Chez, maybe this is what happened?)[/b:b47d6df541]

[Anonymous]

Thanks guys.

Peter your last scenario hit the nail on the head!!

Even though it is LA official error would you still recover the overpayment or not?

[Anonymous]

Chez
If we accept that this would be classed as LA error, which I would agree with, then can we be sure that the person getting the HB / CTB would know that an overpayment was taking place? 😕

Without any reference to caselaw, I would have thought you would be on rather dodgy grounds arguing this before a tribunal.
If the claimant has told you of the non-deps circumstances, but you have not actioned them on non-deps 18th birthday, I feel that this would be a harsh interpretation. What would you have to suggest that the claimant should have realised non-dep charge from 18 (for example, another non-dep living in house who was 18 and there was a non-dep charge applied at the time, so there is a history etc).
Even this link is very tenuous, and I’d be arguing this as non-recoverable -in this instance. 8)

[Author]

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