Duty to notify- landlord fathers a child of tenant

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  • #38680
    Amanda JB
    Participant

    Can anyone offer any advice on this, or is it as straight forward as it seems

    Lone parent changes address in 2007 to a private L/L, the form asks if the L/L is related to her or her children and the examples given include a partner, she ticks no, she gives birth a few months later and declares the new child.

    3 years later in 2010 she has another child and promptly notifies us.

    We find out months later that this new child is the L/L’s, she is interviewed under caution but states she did not think it was relevant that the L/L was the father as she was not asked and she states she provided the birth certificate with the name of the father (she didnt)so was not conceiling the father.

    The investigation does not seem to have asked when and if they became partners it just focused on the paternal issue of the child, she claims he is not the father of her other children. Financial links do not link him ot the property so we could not prove any living togther, although i would have asked for evidence that rent has been paid.

    She has appealed, is it as simple as no offical error its recoverable or does she have a point that none of our literature tells her to declare a change in her relaitonship, or her childrens relationship with her L/L?

    Any advice appreciated

    #109217
    JBAILEY11
    Participant

    If your claim form asks the question it may be considered that the claimant could have resonably have known it may have made a difference (From what you said she was pregnant at the time she completed the form, would this have crossed her mind, would a normal person possibly ask or would they have known not to say anything?)

    #109222
    Amanda JB
    Participant

    She completed the form 3 years earlier though and the baby she had then was not the L/L’s.

    #109226
    Kevin D
    Participant

    If the form asked the question, that’s stage one – I agree with JBailey. The next stage is about how clear the instructions were in the notification letters about what changes the clmt was under a duty to notify the LA. If the latter was sensibly and properly worded, it’s unlikely that the o/p will have been caused by an error on its part.

    The next part is whether the clmt DID in fact notify the LA by way of the birth certificate. If she did, then it is open to argument that the LA misfiled/mislaid the document and that the o/p was caused by an error on the part of the LA. The clmt then needs to show she did not contribute to the cause of the overpayment AND that she could not reasonably have been expected to realise she WAS being overpaid (at either the time of payment(s ) or at the time of any notice relating to the payment(s )).

    However, if the LA maintains the clmt did not provide the birth certificate, how else did the LA know of the birth of the child in question? Also, who raised the issue of the birth certificate? How / when did the clmt insist the birth cert was provided? Was the timing / manner of the clmt’s insistence of such provision such that is raises questions of credibility? Same applies if it was to transpire the LL was in fact the father of any of the other children.

    If the LA decides the overall evidence is such that, on the balance of probability, the clmt did NOT provide the birth certificate, then it’s difficult to see how any resulting o/p was caused by an error on the part of the LA. In turn, it will be recoverable irrespective of any other facts.

    #109230
    Amanda JB
    Participant

    Hi Kevin

    She only provided her award letter for child benefit for the child not the birth certificate although she says she did. Evidence in file is just the CB letter and the note also just says CB handed in.

    We got a referal from DWP I think from a compliance officer who visited her for what ever reason, that is how the paternity of the father was reported.

    Our inserts with letters advising that COC must be notified does not say anything about advising changes in relationship with the l/L, it gives some examples and ends with any other change which may affect entitlement to benefit. Her argument is she did not know it was relevant and when she did notify the birth of her child and she was not asked who the father was.

    NB: Do you think its worth asking for evidence of rent paid as I am suspicious that he lives there although no financial connection but the address he gives is his mothers.

    #109235
    Kevin D
    Participant

    On the issues of change of circs instructions given to the clmt and whether or not the LA asked for details of the father at the time of the change being notified, it will simply boil down to exactly where the line is drawn in how much information should be given to claimants upon notification. Obviously, it isn’t reasonable to provide a notification that essentially ends up being the equivalent of a claim form and I don’t think even the pickiest of Tribunals would suggest that for a moment. Also, is it really reasonable to ask who the father is in EVERY single PT case where a child is born? I can imagine the uproar this would cause in some quarters. That may well be seen as above and beyond, but it will doubtless turn on the facts of the case.

    What may be relevant here is the birth cert. Why is the clmt so insistent she provided it? Does this indicate the clmt is, afterall, rather more aware of a potential effect on HB that a connection between child and LL could make? Bear in mind, the duty to notify changes in circs isn’t necessarily about what the clmt ACTUALLY knew; it places the duty to the extent of what a clmt might reasonably be EXPECTED to know. Can the LA make an argument that the question on the original claim form meant the clmt could reasonably be expected to know that fact was potentially relevant? Is it reasonable to expect clmts to remember questions from benefit claim forms? Probably not in truth – ask yourself how many of the questions on your own LAs form you can remember :). On the other hand, if it turns out that any of the other children are fathered by the LL, the LAs case is infinitely stronger (howabout asking for the birth certs for those children – or seeking them from official records?).

    On the matter of the integrity of the “tenancy”, it’s imperative the LA doesn’t conflate this with the “child” issue. If you have suspicions, there is nothing wrong with the LA pursuing enquiries about rent payments – especially if the LA considers the clmt is, how shall I put it, not being entirely straight when insisting she provided the birth cert. But, make sure that any questions are clearly focussed without mixing the two issues.

    #109242
    Amanda JB
    Participant

    Hi Kevin

    We already have the birth certificate for the child who she gave birth to shortly after she moved in and there is no father named, she claims it is not her L/L’s child.

    She came to our offices and notifed that she have given birth, notes says CB and birth cert to follow, she then a few days later just proivded the CB award letter and not the birth certificate.

    I am going to have to send her appeal to F-Tribunal and just wanted to make sure i cover all avenues so dont get egg on my face if a Judge brings this up, as they are likley to as this is her sole grounds for appeal.

    Thanks for your help

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