errrrrrrrrr…….. good old U/E

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    am i flippin my lid? clt overpaid cos wife working & HBMS picked it up. We cancel bens out & write & ask for wife’s earnings to do u/e. They were given a cal month to do this………no earnings dets given so no u/e awarded. Goes to TAS 7 months later……….TAS chair adjourns case and asks clt to provide wife’s earns so we can do notional u/e…….notional u/e? does this even exist???????

    they then send in wife’s earnings & we have to manually calculate notional u/e – goes back to TAS in September & chair decides to award notional u/e & instructs us to reduce o/p by this amnt. I asked for stmnt of reasons cos in absence of provision of wife’s earns within the cal month, my view is that clt wasnt entitled to u/e – whether it be notional, actual or otherwise. Stmnt of reasons from TAS says u/e was applicable as we were demanding a new claim & we shouldnt have been…… we didnt demand a new claim! We only wanted the flamin payslips within a cal month of asking for them! Is TAS decision correct?????


    If you have invited the claimant to provide the information to support a period of underlying entitlement then no. But, as with many L/A’s you have sent out a letter saying your claim is cancelled, please complete this form and provide blah blah then I would say they were correct


    In my opinion the decision is wrong as you actually considered UE and decided none was applicable as the claimant did not provide the necessary evidence. (Adverse inference)

    “notional” UE does not exist.

    Go on, take it to Commissioners!!!

    Kevin D

    [Edit: nothing copied from Jeff – honest! ๐Ÿ™‚ I was compiling as he posted…!]

    Hi Karen,

    This response assumes there is no overpayment.

    On that basis, there can be no underlying entitlement. [b:853a91ef39]HBR 104[/b:853a91ef39] can only be applied to an overpayment. That is crystal clear from the wording of the reg. On that basis alone, the Tribunal is wrong.

    The next consideration is what your decision actually was when ending entitlement. Was it:

    1) a supersession, with inferences being drawn that the clmt’s circs had changed and were such that s/he was no longer entitled to benefit; or

    2) a termination under [b:853a91ef39]DAR 14[/b:853a91ef39], following a suspension under [b:853a91ef39]DAR 11 or 13[/b:853a91ef39]?

    If a supersession, [b:853a91ef39]R(H) 03/05[/b:853a91ef39] provides the authority for drawing inferences in circumstances where evidence is not provided.

    In requesting evidence, the test is not whether the clmt can or will supply evidence. It is whether the LA (reasonably) requires that evidence in order to determine proper entitlement to benefit [see [b:853a91ef39]CH/4688/2003; para 11[/b:853a91ef39]]. In that same paragraph, Cmmr Jacobs observes that the absence of such evidence may result in a decision that is less favourable than it might otherwise be. To my mind, that line of reasoning is entirely consistent with the subsequent R(H) 03/05.

    [b:853a91ef39]CH/2466/2005[/b:853a91ef39] involved a case where the clmt provided evidence after a decision had already been made. It was found that the LA was entitled to rely on that decision.

    If your decision was a termination, it seems pretty plain that the Tribunal didn’t address that properly at all.

    One other point, if it transpires that there may have been entitlement after the change in circs, but there is a gap at any point, then a claim must be made (either “normal” and / or backdating) for any further award to have effect – see [b:853a91ef39]CH/0269/2006[/b:853a91ef39].

    At face value, it appears the Tribunal has made a howler. Well worth a shot at Cmmrs.

    Hope the above helps.


    Ah…to impose a time limit or not to impose a time limit. There are 2 schools of thought. Having just returned from a very informative and interesting course given by the two Peters (Barker and De La Mothe), I would go for no time limit.

    The argument for this is that time limits apply to decisions and o/p adjustments are referred to as determinations. Decisions are covered by the D&A regs whereas determinations are not. R(H)3/04 covers this in more detail. You have the Interpretation Act of 1978 which, amongst other things, stipulates that powers can be used at any time.

    I think it also fair to say that Tribunals etc will always tell you to go away and do the UE regardless of time.

    Kevin D


    Based on Karen’s initial post, there doesn’t appear to be any overpayment. Therefore, underlying entitlement has no relevance.

    As an aside, I’d strongly argue against “no time limit” for evidence being provided in u/lying entitlement cases. [b:f8602b55f1]CH/4688/2003[/b:f8602b55f1] (para 10) is interesting. The time limit for providing evidence in u/lying entitlement cases is no different to any other request for evidence. No evidence = inference, or termination, as appropriate. But, that argument has been done to death in other threads, so I’ll stop right there ๐Ÿ™‚ .


    hi Kevin

    yes there was an overpayment – see first line of my post. We made adverse inference & terminated bens due to wife’s undeclared earns as we had no idea how much they’d be

    I still believe that the time limit re u/e should be enforced – we wrote & asked for proof of Mrs’ earnings at the time we terminated so that we could consider u/e. Nothing forthcoming etc within cal month so in my mind u/e could no longer be considered. Clearly not though according to Tribunal chair. Had we been whiter than white in all our handling of this claim I would take it to Comms but we haven’t quite been so I don’t feel comfy in doing this

    Thanks to everyone for your replies to this


    There are no rules about time limits with regard to underlying entitlment. LAs provide a month but as far as I see it that is for administrative convenience.

    Anyway not having a time limit for underlying entitlment is better for the Authority anyway as it reduces the level of overpayment.

    (1) Subject to paragraph (2), in calculating the amount of a recoverable overpayment, the relevant authority shall deduct any amount of housing benefit which should have been determined to be payable in respect of the whole or part of the overpayment periodโ€”
    (a) on the basis of the claim as presented to the authority;
    (b) on the basis of the claim as it would have appeared had any misrepresentation or non-disclosure been remedied before the decision; or
    (c) on the basis of the claim as it would have appeared if any change of circumstances, except a change of the dwelling which the claimant occupies as his home, had been notified at the time that change occurred. SI 2005/2904
    (2) In the case of rent rebate only, in calculating the amount of a recoverable overpayment the relevant authority may deduct so much of any payment by way of rent in respect of the overpayment period which exceeds the amount, if any, which the claimant was liable to pay for that period under the original erroneous decision


    Even if there is a time limit for providing information to support underlying entitlement, I still think the Tribunal is right to look at it.

    Once you make an overpayment decision (or “determination” as the case may be, as Andy notes), the amount of that overpayment is part of the decision/determination. Underlying entitlement is just one ingredient that goes into the calculation of the amount. Having made your decision/determination, it is then subject to a right of appeal. The appeal could be against the recoverability elements of the decision, or the amount, or both. If the amount is appealed, the Tribunal has jurisdiction to say that the amount should be different. You could call this “notional u/e”, which I agree is confused rubbish (indeed “underlying entitlement” is a piece of jargon not found in the legislation); or you could take a step back and say that the Tribunal has in substance asked for evidence to check that the amount of the overpayment is correct.

    I don’t see any problem with that even if you take the view that underlying entitlement is subject to all the usual time limits.

    [I am a converted ex-time limiter on Reg 104, incidentally. I was aware of the determination/decision thing ever since I read R(H) 3/04, but I had put it to the back of my mind on the basis that the distinction was made for the isolated purpose of cobbling together some kind of coherent decision about recovery targets and the right of appeal without directly defying the Court of Appeal. But you cannot deny that it is actually a very good point when you look at Schedule 7.6(6). If Paul Stagg is convinced by that argument, there is obviously at least a debate worth having.

    Paul Stagg’s other point is that even if there is a time limit to have an overpayment decision revised in the claimant’s favour for u/e, and s/he misses it, what you would normally do in those circumstances is make a superseding decision from a later date. If you are dealing with an issue that affects continuing entitlement, the claimant loses out but when you are dealing with a one-off overpayment decision the later supersession doesn’t have the same penalising effect.]


    A13/2006 says :

    “Calculating underlying entitlement is part of the overpayment calculation. Once a request for information has been made and the details supplied or not supplied, the correct and final overpayment amount should be calculated. If information comes to light after this has been completed and outside the given time limits, the LA should not need to revisit the overpayment decision again. However, the customer may request the LA to accept the details they have provided late and still calculate any underlying entitlement. The LA should follow the normal backdating rules, ie was it reasonable for the information to be provided late. An LA should not automatically recalculate underlying entitlement every time fresh details emerge, which could affect the overpayment period.”

    The chair had obviously not read it. Meanwhile the u/e will reduce the scale of the o/p to recover (which helps your BVPI`s for o/p`s) and you have good reason to reduce it – a Tribunal decision. I think you come out of it a winner.


    100% agree with your interpretation Mike


    Leaving aside the embarrassing reference to “backdating” in the circular (they meant applying for out of time revision), that extract doesn’t deal with appeals. When you make a decision, the claimant has two options:

    – appeal to the Tribunal
    – apply for local revision

    The circular is talking about the local revision option, and the time limits that apply for that. If the claimant misses the time limit to apply for local revision the Tribunal might still accept an appeal out of time. That is what has happened in your case Karen – in fact, you don’t even say the appeal was late, for all I know it might have been made within a month of your overpayment decision. Either way, there is an appeal against the overpayment, and if the Tribunal thinks you have got the amount wrong it will substitute a different overpayment decision for a lower amount. It can do this. It doesn’t matter what information-gathering time limits were missed along the way – the amount of the overpayment is now in the Tribunal’s jurisdiction.


    Was the decision to terminate the claim in the manner described correct anyway? Surely if you discover undeclared income / earnings, you would suspend claim and request evidence of said income / earnings? Only when that was not provided within a month would you then make an adverse inference and ‘nil’ the claim (and only then would u/e apply).

    Perhaps the fact that the case was terminated immediately influenced the decision of the Tribunal.


    sorry for misleading
    we did suspend & gave a cal month for info re earnings to come in so was done in the correct way

    I honestly dont think that the particular Tribunal chair who made the decision has really grasped suspension/termination rules anyway


    Gilbert & Sullivan springs to mind (No not Gilbert O’Sullivan!)

    Something about hoodwinking judges who are not overwise!!

    Do I know what I'm doing? The jury's out on that........................

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