Terms & Conditions

[Anonymous]

There appears to be some confusion over when official error starts and I would welcome some views on this.

There are two scenarios where I used to think I know the answer but am starting to get confused.

1. Is there a period of grace within which authorities can deal with a reported change of circumstance before we record an official error? In CH/0858/2006 (paragraph 20) Commissioner Jacobs commented that
[quote:935f37b508][i:935f37b508]The local authority was not aware of the increase in the claimant’s earnings until she mentioned it at the visit on 19 April; it took it into account on 13 May. That was less than a month later. Delay can be an official error. However, Ms Jackson argued that the local authority had taken a reasonable time to amend the claimant’s award. I accept that submission.[/i:935f37b508][/quote:935f37b508] This seems to indicate that there would be no official error where we delay in dealing with a change. If this is the case is there a point at which official error would start?
2. What action should we take where an authority is informed of a change but does not have enough information to deal with the supersession. For example a claimant tells us that he has had a wage increase but has not yet provided the wage slips to verify it. Should we suspend benefit at that point? If we fail to do so is any subsequent overpayment official error? I guess to some extent this may vary depending on the type of change, but I would welcome some comment on what other authorities do. Are there any relevant commissioner’s decisions?

[Kevin D]

This may help.

[b:5ade2f02ad][u:5ade2f02ad]Scenario 1[/u:5ade2f02ad][/b:5ade2f02ad]

Cmmrs have looked at LA delays in processing on a number of occasions. The “grace” period has varied from 9 days to over a month. I think that LAs could certainly argue that 14 days is reasonable (it is afterall consistent with 14 days to process a claim) and, slightly less convincingly, maybe up to a month. However, I think anything over a month will normally need a convincing and good explanation by the LA. But, it will depend on the facts and merits of each case.

CDs on the “delay” issue are (including yours):

[b:5ade2f02ad]CH/0858/2006 (p20)
CH/0881/2005 (p1)
CH/3629/2002 (p8 )
CH/0454/2005 (p10)
CH/2741/2003 (p14)[/b:5ade2f02ad]

[u:5ade2f02ad][b:5ade2f02ad]Scenario 2[/b:5ade2f02ad][/u:5ade2f02ad]

Cmmrs have again found that it is not necessarily an official error to allow payments to continue where an LA is awaiting info / evidence. But, again, it will depend on the facts and merits of each case.

CDs on the “payment not suspended as evidence awaited” include:

[b:5ade2f02ad]CSHB/0718/2002 (p42)
CH/0843/2005 (p9)
CH/0454/2005 (again!)[/b:5ade2f02ad]

Hope the above helps.

[Anonymous]

Thanks Kevin. I’ll take a look at those

There is a further issue here. The guidance in these decisions will help us to decide if an overpayment is recoverable or not, but what about the subsidy categorisation. If the overpayment is not an official error for the first month for the purposes of deciding on recovery, (on the grounds that we have a ‘period of grace’) could we not also argue that the overpayment for the first moth is not official error for the purposes of subsidy classification?

Any thought on this please?

[Anonymous]

If an overpayment is not official error for recovery purposes, then it is not official error for any other purpose.

[Kevin D]

Maurice,

A very good point :). There have been many threads on this forum about this issue.

In summary, there are two lines of thought and the arguments for both have been put very forcefully.

Thought 1 is that there is a distinction between official error for the purposes of deciding recoverability in terms of the effect on a clmt; and an official error for subsidy purposes. The DWP’s view is that if an LA gets wind of a change of circs 5 minutes before a payment of benefit is sent / allowed and the LA fails to stop that payment, that is official error for subsidy purposes.

Thought 2 is that the DWP’s position has no basis in law and that LAs should be arguing with auditors / BFI / DWP that Commissioners have ruled on this and that is what counts in terms of law. As it is the only law on the issue, it should be followed

These earlier threads cover most of the arguments (links are given in some posts for other threads on the issue):

new.hbinfo.org.com/forum/viewtopic.php?t=7528
new.hbinfo.org.com/forum/viewtopic.php?t=7895

Hope this helps. Oh, you wanted a definitive answer…… 😯 . Well, good luck :).

[seanosul]

I have entered fighting mode and have refused to reclassify. Our 2005/06 claim which is late because our auditors took the re issued Northgate software as an excuse to contract elsewhere is going to be qualified becuase we have reclassified PT overpayments but not others. The PT ones were due to HBIS paper errors.

I have asked for this response to be added to the letter.

The Council has applied revisions to the Private Tenant area of overpayments.It has not applied those revisions to other overpayment cells. Primarily because the level of error is lower and also becuase actual legislation with regard to LA error appears to conflict with DWP advice.

The regulations require decisions to be made within 14 days for new Private Tenant claims. The Performance Indicators suggest that a high standard of processing would be to process changes of circumstances within 14 days.

The Local Authority has highlighted five Commissionerd decisions that have clearly stated that a period of up to a month cannot be considered a delay. These decisions are

CH/0858/2006 (p20)
CH/0881/2005 (p1)
CH/3629/2002 (p8 )
CH/0454/2005 (p10)
CH/2741/2003 (p14)

In CH/0858/2006 (paragraph 20) Commissioner Jacobs commented that

The local authority was not aware of the increase in the claimant’s earnings until she mentioned it at the visit on 19 April; it took it into account on 13 May. That was less than a month later. Delay can be an official error. However, Ms Jackson argued that the local authority had taken a reasonable time to amend the claimant’s award. I accept that submission.

The Authority strongly believes that the guidance on this should reflect the legislation.

[Anonymous]

That’s interesting Sean.

Can I just clarify a couple of things. Have you adjusted your final subsidy claim to reduce the LA error on the grounds that there should be a period of time within which the authority should be permitted before classifying any overpayment as LA error, or do you staff routinely process changes and cancellations to take into account a ‘period of grace’ which should not be classed as LA error. If it not LA error what have you called it?

What period of time have you used? You seem to be arguing for 14 days but are their grounds for suggesting 28 days given Commissioner Jacobs comments in CH/0858/2006.

Many thanks for your help

[seanosul]

[quote:a6617ead01=”mcurtin”]That’s interesting Sean.

Can I just clarify a couple of things. Have you adjusted your final subsidy claim to reduce the LA error on the grounds that there should be a period of time within which the authority should be permitted before classifying any overpayment as LA error, or do you staff routinely process changes and cancellations to take into account a ‘period of grace’ which should not be classed as LA error. If it not LA error what have you called it?
[/quote:a6617ead01]

It is easier than that we have gone with the system figures (which given the system I am currently working on I would normally never do) but we are not in a position to reclassify until we have correct guidelines that follow legislation.

I would never suggest assessors deciding a “period of grace”.

[quote:a6617ead01]
What period of time have you used? You seem to be arguing for 14 days but are their grounds for suggesting 28 days given Commissioner Jacobs comments in CH/0858/2006.

Many thanks for your help[/quote:a6617ead01]

I am mindful that the Subsidy Order and the HB regs although identical in wording, are separate pieces of legislation. However the HB General Regulations and the Subsidy Order [b:a6617ead01]both[/b:a6617ead01] have the same parent legislation. The subsidy order and the HB regs are secondary legislation. I have therefore left it for the DWP to suggest a “reasonable period” for delay, given the decisions referred to above.

This is at very early stage yet but I will keep everyone updated.

[seanosul]

Progress; Our Auditors provided the strangest qualification on this – which obviously the DWP will reply to. However based on their testing they have now said we have only a 3% error rate on overoayments; as this is a new Northgate site I am seriously confused by this more than the arguments we have had over allocation.

Going back to the original post Andy Ui had a very similar case they were looking at which was classed as Clt Error and quoted the subsidy regs at them

In paragraph (2)(a) “authority error overpayment” means an overpayment caused by a mistake made, whether in the form of an act or omission, by an authority, [b:6a0e2d9182]where the claimant, a person acting on his behalf or any other person to whom the payment is made did not cause or materially contribute to that mistake.
[/b:6a0e2d9182]

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