Failure to disclose – time limit?

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    Claimant moves from the property on 19 April 2010.

    The authority finds out when it receives an ETD on 29 April 2010.

    The authority stops payments from the following week and are left with an overpayment for the period 19 April 2010 to 2 May 2010.

    In essence, the authority is notified of the change within ten days, albeit not (directly) by the claimant. The authority is satisfied the landlord was not aware that the claimant had moved.

    Has the overpayment been caused by a failure to disclose?

    I can see it both ways –

    (A) The change was disclosed to the authority in a timely manner, particularly as HB reg 88 places a duty on the claimant to notify a change but does not specify a time limit. As there was disclosure within a reasonable time, the overpayment cannot have been caused by a failure to disclose.

    (B) Even though the change was disclosed, the overpayment that occurred was caused by the change not being disclosed as early as it could have been. The disclosure occurring within 10 days limits the period the failure to disclose could be said to last but doesn’t negate it entirely. The fact that the authority considers that the claimant is not morally culpable is irrelevant.

    Which is correct? Or even is there another option, I haven’t thought of?

    Kevin D

    In my view, the correct question to ask is “Was any part of the overpayment caused by an official error”? If the answer to that is “no”, nothing else matters – the overpayment is recoverable.

    Even if any part of the delay can be attributed to the DWP, was the delay such that is constutes an error? Based on the facts stated, that would be a bit of a stretch. However, for the sake of argument, let’s say the DWP’s “delay” counted as an error. Even then, the clmt’s failure to notify the “designated office” surely contributed to the cause of the o/p (assuming the LA’s notifications letters contained clear and unambiguous instructions!).

    In my view, assuming that there is nothing more to it AND subject to the clarity of notification letters, this is a recoverable overpayment simply because it wasn’t caused by an official error.


    Sorry Kevin, didn’t make myself clear.

    I’m happy that it’s recoverable but who from?

    If (A) “the claimant as well as the person to whom the payment was made”

    If (B) the claimant only.

    Kevin D

    If there was not a failure to disclose, HBR 101(2)(a) makes it clear the overpayment is recoverable from the clmt AS WELL AS the person to whom the overpayment was paid.

    If there was a failure to disclose, the clmt is then caught by HBR 101(2)(b) in any case.

    Is it also recoverable from the LL? By the strictest reading of s.75 SSAA 1992 and HBR 101, the o/p is also recoverable from the LL – the LL doesn’t satisfy para 1 of HBR 101. However, you have indicated the LA accepts the LL did not know of the change. That introduces the “constructive knowledge” stuff which adds further law to the bare legislation (previous threads explore “constructive knowledge”). Vastly oversimplified, the o/p isn’t recoverable from the LL if s/he truly didn’t know of the change.

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