help re CH/4234/2004 please?

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    Hi can anyone help me with this?

    we have an appeal pending where we are trying to recover an OP from a landlord as the LL was paid direct and received payment after the tenant had vacated the property. NO one notified us we realised when a new claim was made by a new tenant at the address. LL has appealed and has argued that the money was spent on repairs due to damage by the previous tenant.

    The tribunal service has now written asking for a further submission considering CH/4234/2004. As far as I can see this just says that we have to notify all parties of the OP. Both were notified and we have also written to the clmt to tell him of his LL’s appeal and sent him a copy of the submission. is there anything else I should be saying in the additional submission?, is there anything else that the commissioner’s decision wants?? Thanks


    I suspect that what the Tribunal is really after is some comments in the light of the Commissioners’ [i:0ebf93d7a9]obiter[/i:0ebf93d7a9] comments concerning the interpretation of Reg 101(2) as amended from April 2006. In particular, the Tribunal wants to know why you consider the overpayment to be recoverable from the person or persons you have notified in accordance with that Reg.

    Why was there an overpayment? Because you didn’t know the claimant had moved.

    Whose fault was that? Anyone who knew the claimant had moved, had a duty to tell you, but didn’t.

    In this case it sounds as if the landlord did know before you did (whether the landlord knew all along would require further probing by the Tribunal); and the claimant certainly knew. Both were under a duty to notify and it may be that they are equally to blame for this.

    I think that is what the Tribunal is driving at.


    You would assume that if the landlord was carrying out repairs to the property he/she would have known if the tenant lived there or not, maybe? 8)


    Ah, but have you sent the RIGHT letter to the claimant? Or did your original letter just say “you have been overpaid and we are recovering from you” etc immediately instead of going through the correct decision process.

    It sounds to me that the landlord is arguing the OP is recoverable from the tenant and not from them i.e. something outside jurisdiction.

    I raise this because the number of half-page CD’s on this issue is growing. The Commissioners are quashing decisions because the new reqs have not been met and are also “telling off” Tribunal Chairs for getting involved in recoverability decisions (which I suspect this case is an example of).


    Its not enough simply to notify both parties of the overpayment. The Tribunal of Commissioners said at paras 60-61 that a single “recoverability decision” must be issued to all the parties from whom the overpayment is recoverable.

    Following the Tribunal of Commissioners decision, the question as to from whom the overpayment is recoverable remains within the jurisdiction of Tribunals, but the question as to from whom to recover from is not as enforcement is a matter for the LA alone

    A later much shorter decision of Mr Commissioner Mesher CH/3622/2005 confirmed that what the Tribunal said at paras 60-61 is not just advice it is binding authority.

    If the proper recoverability decision is not issued, the case will be remitted to the LA to make the decision. Until the debate over retrospectivity and the Plewa case gets before a Commissioner or beyond to the Courts, it can be argued that the 2006 overpayment rules will apply to the new decision even if the decision under appeal was made under the old Regs.

    The overpayment may well then only be recoverable from the person who misrepresented or failed to disclose.

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