Terms & Conditions

[jowalraven]

We have an overpayment due to a change of address:

Claimant moved 18/09/06 but told us on 09/10/06
LL told us on 12/10/06 and said that she was evicted on 28/09/06
Payments went to LL and we have said he alone is target for recovery.

He has appealed against this but his grounds are that she was resident until 28/09/06 or at least had her belongings there until then. LL not resident but lives in same town)

Should both (clmt and LL) be target for recovery for whole period on the grounds that they both failed to disclose a material fact? Or should it be clmt for whole period and LL from 28/09/06 to 09/10/06 on the grounds that he could not disclose she had vacated prior to 28/09/06 as he was not aware?

Or is it claimant alone for whole period because she first and foremost failed to declare a material fact?

Any advice would be appreciated.

[markp]

CH 4234/2004 applies.

Firstly you have to notify both parties of the fact that there is a recoverable OP along with breakdown etc, etc.

You then have to notify the OPRT of the decision that they will be asked to repay it. You do not advise the other party that they won’t have to repay it because the OP is recoverable and at some late point the OPRT may change.

The OP is recoverable from the landlord as it is the result of a change in address and, as I understand things, this is the one exception in Reg 101 (1) where there is no protection for the landlord. However the claimant is also a recovery target because she failed to report her change of address at the time.

However have you considered the part in Reg 7 (6) (d) which may allow you to pay for up to four weeks due to an unavoidable liability? Or Reg 7 (7) which covers the possibility that there is no longer a rent liability at a new address but a notice period exists at the old one? This might get rid of the OP altogether and then you won’t have to worry about it.

It’s not easy but you have a choice. I think you have made the right decision, assuming that you have decided not to apply the unavoidable liability Regs, as it is the result of a change in address and the LL knew that he was seeking possession.

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

[jowalraven]

I went on the HB Info training in London on Tuesday about Overpayments and I thought things were clearer but now I’m wondering…..

We have only notified the LL that he is the target. But the claimant has also failed to disclose so should it be her as well??

From the training on Overpayments by HBinfo, the understanding was that if another person was caught by 101 (2) (a) then 101 (1) does not come into play. The trainer mentioned that the DWP intend (or perhaps would like) authorities to seek recovery from a LL where there is a change of address but (in the trainer’s opinion), we should still consider who failed to disclose etc which in most cases even with change of address, its usually the claimant.

We did look into the unavoidable liability but mistakenly did not think it was appropriate. Looking at it again, we think she does qualify for this which gets rid of the OP.

However, I am interested in comments on the above scenario so keep them coming!

[markp]

The LL in your case is not protected under Reg 101 (1) as he didn’t tell you until after gaining possession of his property. Therefore you have the choice as from whom the recovery should be sought. Both parties are in the frame and so as long as you have acted reasonably, you should be able to defend the decision made as long as both parties were notified of a recoverable OP in the first instance. As stated before, either party could be asked to repay the OP so you have selected the LL as he had the payments and the OP was the result of her change in address.

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

[arenton]

I dont have any expertise with this- but for what it’s worth i would say recover from the claimant the bit between 18th and 28th, as the landlord had grounds for thinking she was still there.

But recover the rest of the o/p from 28th to 9th October from the landlord- purely on the fact that they both had a duty to notify us- but it was the landlord who got the cash.

Might be totally wrong- but if it is- will at least get more replies to your post!!

Cheers

[Anonymous]

Mark, I think the DWP shares your view: it seems to me from all their pronouncements on this subject that they assume that the insertion of subpara (bb) in Reg 101(1) means that an overpayment caused by a change of address is always recoverable from the landlord.

I believe they are wrong.

The way I read it, subpara (bb) means that Reg 101(1) doesn’t apply. Who cares? Reg 101(1) is yesterday’s news. The paragraph is made under s75(3)(a) – circumstances in which an overpayment is not recoverable from the person who received it.

But para (2) is made under s75(3)(b) – persons from whom as overpayment is recoverable from as well as or instead of the person who received the money. It operates independently of para (1) (see paras 45 and 52 of CH/4234/2004 where the Commissioners expressly reject the interpretation that para (2)(a) only applies where para (1) also applies): the Commissioners are clear that subpara (2)(a) prescribes persons from whom the overpayment is recoverable [b:dbde2378df]instead of [/b:dbde2378df]the person whio received it, irrespective of whether para (1) applies. Para (2) is not disapplied in change of address cases … and I cannot think of any circumstances in which a landlord would ever need to rely on Reg 101(1) because surely they would always fall under para (2) anyway. So subpara (1)(bb) is a bit of a waste of space really. In fact, all of para (1) is a waste of space.

Returning to Jo’s example, had their been an overpayment here (I gather you have now decided there isn’t, but lets pretend there was) it looks as if it might have been caused equally by both the claimant and landlord: I am guessing a payment was made some time after the claimant was evicted but before the Council knew (i.e. between 28 Sept and 9 Oct). If that’s correct, then at the time when the payment was made both of them knew that the claimant had moved out and neither of them had got round to telling the Council. So a payment was released as a result of their combined failure to disclose something they were both under a duty to disclose.

There are now two ways of looking at this: either Reg 101(2)(a) applies to the pair of them, even though the use of the word “instead” doesn’t quite sit right; or Reg 101(2)(a) doesn’t apply and so you drop through to subpara (2)(b) in which case, again thanks to the Commissioners’ interpretation, the overpayment is recoverable from the pair of them anyway [this being the “as well” part of s75(3)(b)] – and possibly from the claimant’s partner too for good measure. The end result is much the same – the overpayment is recoverable from both landlord and claimant on the facts of this case (in many cases it won’t be recoverable from the landlord because the landlord won’t know the claimant has moved). Both should be notified of this. How and from whom you choose to enforce recovery is another matter altogether and can be left for another day.

[jowalraven]

I originally considered that the claimant was the target for the whole period and the LL only from the 28/10/06 – the point at which he failed to disclose.

However, I hadn’t given any thought about who knew what when payment was made. Payment was issue on 05/10/06 at which point, both parties knew that clmt wasn’t living there. Therefore, I can see that they both are caught by 101 (2)(a).

As Peter said, actual recovery is different issue.

I have found it really hard to get to grips with the Overpayments regulations lately, particularly the “as well of and instead of”. The OP training really help but still feel that I am scratching my head and staring into space! Am I alone in feeling like this???? 😯

[Anonymous]

Jo, the “as well or instead” issue is clarified by paragraph 45 onwards in CH/4234/2004. To cut a long story short:

101(2)(a) = instead
101(2)(b) = as well

That’s all there is to it!

[jowalraven]

This could be making a bit more sense now! I feel the light could be coming on any time now……….

[peterdelamothe]

Jo writes:

“I have found it really hard to get to grips with the Overpayments regulations lately”

Bearing in mind it is now generally accepted the first T of C and the Court of Appeal did not understand the issues, I think you are in very good company! Personally, I think it is extraordinary just how much is understood.

I would just add to other comments here this note on para 57 of the latest T of C decision “we hope that the legislation will be amended to make the legislative intent clear to a reader who is unfamiliar with the background”. We have not heard the last of this subject by a long way methinks.

[Author]

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