Terms & Conditions

[lesleyb]

Overpayment transferred from old claim to new claim to continue weekly deductions from HB at new address.

Transpires that HB at new claim assessed incorrectly and when corrected an underpayment identified. The underpayment & overpayment cover different periods. The overpayment was recovered from the underpayment and balance paid to clmt’s landlord.

Clmt has now written disputing the recovery of the full amount as she was happy to pay the overpayment by deductions. She is in arrears and fears she could be made homeless.

Would it be in order to reverse the process i.e. refund the underpayment and commence deductions again to recover the overpayment.

I believe we were entitled to recover the money, but I am concerned that the claimant is now suffering hardship because of this.

thanks

[jmembery]

My view will be unpopular I think.

If the overpayment was correctly recovered (I.E from arrears of benefit) then I cannot see that you can now go back and deliberately overpay the claimant again.

IMO any such new overpayment would be LA error and have separate appeal rights.

[lesleyb]

More info to add to my query.

The original overpayment was notified in the correct manner when it was created. It was properly recovered from the underpayment.

However, before this was done system letters were sent to the claimant advising her landlord would receive the full underpayment. I have just noticed that she wasn’t informed of the recovery of the overpayment from the underpayment.

Were we obliged to tell her about this?

[jmembery]

In response, let me ask you another question.

If you wrote to a new claimant saying they were entitled to Benefit and you would be paying £1,000 to their landlord, but, before the payment went out you found that the Benefit Officer concerned had misread the regs and the claimant was not really entitled. Would you go ahead and pay anyway?

[lesleyb]

Good point. Thanks for your input – you have put my mind at ease with the recovery.

[Anonymous]

A pre -existing overpayment may be recovered from arrears of benefit, but it does not have to be . In other words the Council has a discretion and it must be exercised reasonably.

One factor to be taken into account is the reason for the accrued arrears. If those arrears arose as a result of an error by the Council, or as is common becuase the Council did not decide the claim within the statutory period, it would be unjust for the overpayment to be recovered as a lump sum from the arears as this would mean that Councils may profit from their own maladministration.

I think that Council should resore the staus quo and give effect to the proper exercise of discretion and not recover at a rate above the statutory maximum.

The question of stopping an overpayment before it goes out is an intersting one because the Council must have grounds under the revision/supersession rules to change the decision that has already been notified. The only ground open to the Council in the circumstances is that of official error.

Findlay suggests that the Court of Appeal in Haringey LBC v Cotter 29 HLR682 at 689 imply that there may be a public law duty to make payment once a decision has been made and notified. If that is the case, then the LA would be oliged to pay, then revise its decision. The resulting overpayment may not be recoverable

You were in any case obliged to notify the amount of any deductions made either from arrears of HB or from ongoing entitlment. That breach only serves to reinforce any Cotter argument.

[jmembery]

Hi Stainsby
Can you let me know the page number in Findley as this is not something I have come across before?

I do have a copy of cotter, but the paras are not numbered in my copy so I can’t easily look at the source. Funnily enough, I read Cotter as giving protection to LAs so if Findley is correct I am way off beam on that one.

[Anonymous]

Findlay gives the reference to Cotter in the introductory notes (there arent any in the current (18th) edition, but you can find it on page xix of the 16th edition.

689 refers to the page of the Housing Law reports. There is a copy of Cotter on hbinfo, but I got an rtf copy from BAILII. The passge Findlay cites is:

“The pleading in paragraph 6 does not, however, disclose a breach of duty to Mr Cotter in public law. Paragraph 6 pleads a notification of arrears of rent by Mr Cotter to the council, a duty to pay and a failure or refusal to make the payment. As Mr Gordon QC pointed out in argument the pleading does not allege any determination in Mr Cotter’s favour by the Council under Part X1 of the 1987 Regulations,so as to give rise to a public law duty to make payment (See R. v. Northavon D.C. Ex parte Palmer (1995) 27 H.L.R. 576 at 582 on the necessity of concluding the public law decision making function before such a public or private law duty can be established). Further, there is no allegation that there was a refusal or failure to make a determination at all. There is no allegation of a flaw in the procedure for internal and external review of any determination that was made (cf.Warwick D.C. v. Freeman (1994) 27 H.L.R. 616 at 619,620, where,in respect of a county court claim for an overpayment, a defence was successfully raised that the local authority had failed to follow the statutory procedure for the determination of the recoverable overpayment under Part XI). No proposals were advanced by Mr Underwood to amend paragraph 6 of the counterclaim. “

[jmembery]

Thanks Stainsby.

On the first point, my postings are based upon the understanding that the overpayment has been correctly recovered. (I.E, discretion exercised and recovery from genuine arrears of benefit not just a delay in processing).

I still think that if the overpayment has been correctly recovered then there is just no mechanism in the regulations that would allow the LA to grant additional HB to which there is no entitlement. If it has not been correctly recovered than I think you have a point.

On the Findley point, I have read xix in the sixteenth edition (thanks for that) but I do not read it that they are arguing that where a decision is made, [i:ff28f9f7cc]that is revised before payment is made[/i:ff28f9f7cc], that it would be a breech of duty if payment is not then made in line with the original decision.

I read it that they are arguing it could be a breech of duty if a decision is made that payment is due, but no payment is made, or, there is unreasonable delay in deciding a claim. (With therefore no appeal rights available)

I suspect we will just have to agree to differ on that one.

Jeff

[Anonymous]

I was only pointing out that there are a number of issues surrouding public duty, revision and supersession that could potentially complicate what LA’s often do as a matter of course.

The right of appeal on the entitlement issue will be against the decision as revised, so LA’s will be ok on that point, but the other public duty issues have not so far been tested. The Court of Appeal left the issue somewhat up in the air in Cotter.

Dont know what line the LGO would take on injustice and maladministration in these circumstances, but I suspect that he would probably find maladminsitration but minimal injustice, given that Commissioners are wont to do this following the Aweitefe case.

[Author]

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