OP classification

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  • #46299
    markp
    Participant

    Forgive me if I seem to be a little dim but I have an OP dilemma and am having one of many senior moments.

    HB paid to landlord . Claimant vacates property in early December 2012 (approx) and does not advise us of anything. Landlord telephones us on 3.12.12 to report that claimant vacted approx 7 days earlier. Claim is not suspended and HB is paid to 20.1.13. We then terminated award and raised OP, deciding that it is recoverable and that recovery should be sought from the landlord.

    Notification of the OP is issued to both parties on 22.1.13. By 28.1.13 (only just passed to me today) we have a dispute from the landlord against the OP stating that it should be written off due to official error.

    My dilemma is over whether the claimant's failure to decare his vacating the property trumps the landlord's telephone call. If it does then I am happy that the OP would be considered as a claimant error and is so recoverable and I could prepare appeal submission on that basis. If, however, the landlord's telephone call means that, as we had the information and did nothing with it, the OP would almost certainly be LA error. I would still argue that it is recoverable as the landlord knew that the tenant had vacated and so he would not be entitled to those payments.

    I have considered Reg 101 (1) but as the OP relates to a change of address I don't think that the landlord has any protection under this reg.

    We also hold a request, arguably made by the landlord, for a payment to cover an unavoidable notice period. If this were to be paid then it would considerably reduce the OP. However on the tenancy agreement received with the initial claim the tenancy agreement does not mention anything about either party giving notice so I am not inclined to agree to this.

    I would be grateful for any suggestions over the classification of the OP. Many thanks in advance.

     

     

     

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

    #130643
    peterdelamothe
    Keymaster

    The first point is that it is certainly arguable the OP is recoverable in full from the claimant for the full period. It is recoverable from the landlord as well up to the date of the telephone call. After that point I agree it becomes an “official error”.

    The landlord is indeed entitled to argue that it is an official error and remember it is what they would have realised at the date of the payment that matters.

    I think you are confusing who are the targets (which is appealable) with your discretionary decision on who to enforce recovery against (which is not). So a Tribunal would be perfectly entitled to decide that the only target for recovery is the claimant. You must therefore send a copy of the tribunal papers to the claimant and invite them to the hearing.

    #130645
    markp
    Participant

    Thanks Peter, I had been concluding that this was likely to be the case. The OP only starts from the same date as the telephone call so it is all official error. As my manager has since pointed out the issue for the tribunal is whether or not it is recoverable and I was told that at this stage I need not treat the appeal as tripartite. The basis for the appeal is that the overpayment is non recoverable. The landlord has not stated that the OP should be recovered from the claimant.

    Incidentally I had been thinking in distinct stages re recoverability, recovery targets and the target we would enforce recovery against, hence my reference to Reg 101 (1) and I had got that sorted in my mind. The next problem is that I have no idea where the tenant has gone so issuing a copy of the response to the claimant may prove somewhat tricky!!

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

    #130650
    aosulliv
    Participant

    Your posts also suggest that you may not have issued valid notices in accordance with R(H)6/06

    #130661
    Andy Thurman
    Keymaster

    Picking up on the notice period issue – without knowing the details, the tenant & landlord are likely to have statutory rights re notice periods regardless of the ‘quality’ of the TA.
    It is quite possibly unavoidable too! It would be helpful to establish whether there was any contact between the landlord and tenant re the vacation – what prompted the landlord to call? Stumbling across a vacant property or because tenant had told them?

    Given the possibility (as per Amos’s post) that you may need to send R(H)6/06 compliant decision notices prior to processing the appeal anyway, I would look to ensure the notice period issue is fully considered and also that the date of vacation used is correct. (I don’t mean that badly – it would seem reasonable for an “adverse inference” to have been drawn based on the landlord’s “approx 7 days ago” phone call & no further evidence but worth reviewing that at this stage before a tribunal ‘bombshell’!)

    #130666
    markp
    Participant

    Amos,

    They are Northgate letters and should be satisfactory for appeal purposes in that they clearly state that (1) OP is recoverable and (2) who recovery is being sought from.

    Andy,

    On looking at the notes we do have a further telephone call from landlord stating date of departure was 2.2.12 so the adverse inference would not have to be drawn unless we receive further details from the claimant which seems unlikely.

    Thanks everyone for replies.

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

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