Is this excess benefit or not

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  • #31790
    simon
    Participant

    It appears that Council tax were informed that mother and son jointly owned a property and the son claimed ctb. It has now been found that (18 years later) that he is not the joint owner and the mother solely owns the property. Council Tax have therefore altered the account and made her solely liable and the son no longer has any liability and no entitlement.

    The mother has excess capital and can’t claim.

    The question is does the “excess benefit/overpayment” exist as an overpayment or is it just a case of in effect removing the credits on the account that the mother erroneously received due to false information being provided to Council Tax.

    If is is an overpayment then they may have an argument that it was official error as Council tax haven’t got the records going back to confirm who told them. However we do have application forms completed that state they are joint owners however these were completed by our visiting officers as the clmt is blind, though obviously signed by the clmt.

    Also if it is an overpayment could we consider underlying entitlement of 2AR given all the claims are in the son’s name, don’t think we can.

    This initally came about following a fraud enquiry into capital that resulted in an o/p that the clmt has appealled I then discovered the non ownership, our fraud section want to go for a penalty plus 30% but if this isn’t even an o/p this wouldn’t matter anyway.

    #88912
    Kevin D
    Participant

    In my view, it is unquestionably excess benefit. It is CTB that has been allowed and to which there is no entitlement – CTBR 82 applies. Only “future” credits (i.e. beyond the date on which the nil superseding decision was made) will not count as CTB.

    ULE cannot be considered in respect of the mother. She has never been awarded CTB so she has no overpayment to be reduced.

    Without seeing the documents and notes held by your LA, it’s impossible to determine whether the o/p was caused by an error on the part of the LA. However, even if there was an error, did the claimant state he was an owner in his claim form(s) – or other correspondence? If so, that would be misrepresentation (whether innocent or otherwise) and the o/p would be recoverable come what may.

    #88913
    Mikeb2
    Participant

    I’m not really up on ctax law…but does a person have to be an owner to have a ctax liability?

    #88914
    simon
    Participant

    I can see the point however what we looking at is ctb being awarded based on a liability. That liability no longer exisits, if senario is you close down that account thus leaving a credit you would have to move that credit back to offset against the “overpayment”. Is there still an overpayment with appeal rights?

    The new liability with the mother on the new account is nothing to do with the son.

    With regard to Mike’s point they both occupy and the mother is the sole owner so she is solely liable.

    #88915
    Anonymous
    Guest

    Mike: To have a liability the person must be the resident whose interest in the dwelling comes highest – so if the mother legally owned it, and he didn’t, that puts her higher up than him and gives her sole liability.

    Kevin’s answer seems the most obvious common-sense solution, but with CTB and to an extent with rent rebate I am never quite sure that things are how they seem.

    An alternative view would be this: CTB takes the form of a reduction in the amount that the person claiming it is liable to pay (s138 of the Administration Act), and the problem here is that the Council has decided the claimant was never liable to pay anything, therefore there is nothing to reduce. Although the account has been credited with 50% rebate all these years, this decision renders those payments null and void – it is as if they never existed. That leaves a situation in which the mother has been solely liable for Council Tax all along, and so far she hasn’t paid it.

    I don’t know what the correct answer is. I can only suggest setting out all the options for a Tribunal and let it decide.

    If it is CTB, whether it is recoverabe I suppose will depend on whether the VOs asked sufficiently precise questions. In a household like that, the opeople concerned may well regard themselves as jointly entitled to the beneficial interest in the house, and they may well view the legal ownership as a trust – without necessarily knowing the terms for such an arrangement, that will be how they see it in practice. If the VOs asked questions that allowed the claimant to answer honestly and truthfully that he considerd himself a joint owner, that could well be an official error.

    #88916
    simon
    Participant

    Thanks for that Peter, our view is that there is no overpayment for the reasons stated concerning the Admin Act. This has come about due to the son’s entitlement ceasing due to other reasons which resulted in an overpayment which he appealed.

    Therefore:-

    (i) I am in effect revising the overpayment decisions to his advantage i.e. he had a recoverable overpayment now he hasn’t, the appeal lapses?
    or

    (ii) I am making a new decision that he never had any entitlement due to never having a liability that is disadvantageous and doesn’t lapse the appeal? Though no overpayment?

    If the appeal isn’t lapsed he has one month to supply further information on the new decision, where I would guess he would somehow have to argue he was liable?

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