Outstanding overpayment issues 2: which Reg 101?

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    This post summarises some questions that were raised during the last Paul Stagg Overpayments session. There is no definitive answer: we can only speculate about how the Commissioners or courts will deal with these questions. But I did promise to sum up and collect all the loose ends together, so here goes. Sorry, this is a long one.

    [b:dcc98642ca]Background [/b:dcc98642ca]

    Delegates from the overpayment courses will know Paul does not consider that the two amendments of Reg 101 in October 2001 and April 2006 have retrospective effect. In Paul’s view, the Council should decide from whom the overpayment is recoverable by reference to the version of Reg 101 that was in force at the time of the payment or the events that caused it.

    Paul relies on three legal sources for this view:

    First, there is the common law doctrine of the presumption against retrospectivity: unless Parliament specifically says that new legislation applies to old cases, you assume that it doesn’t.

    Second, s16 of the Interpretation Act 1978 contains a similar presumption

    Both of these principles only apply in a case where someone’s substantive rights are affected and it would be unfair to apply the law retrospectively. The classic example is that you cannot be prosecuted for behaviour that was legal at the time when you committed it but has been made illegal since then. Neutral machinery provisions are not affected. Paul’s view is that a person would certainly be substantively worse off if an overpayment is recoverable from them under new powers but not under old ones, whereas they would not be worse off if the only thing that changed was the method of recovery – one way or another they would still have to pay the money back.

    Finally, the presumption against retrospectivity has been tested in the context of social security overpayments in Plewa v the Chief Adjudication Officer. In that case, the new overpayment recovery powers in the Social Security Act 1986 were held not to be retrospective.

    The above is Paul’s view, it has not yet been tested in an HB/CTB case. He didn’t persuade all of you: Stainsby in particular was not convinced that there are strong similarities between the Plewa case and any likely HB/CTB case. So whether or not the April 2006 Regs are retrospective is an issue that the Commissioners will need to deal with one of these days: it needs someone who has a cross-period overpayment case before the Commissioners to raise the matter.


    The arguments are clear enough where an overpayment was both caused and made entirely during one “era” of Reg 101. But there are further complications where either the cause or the payment spans one of the dates on which the Regs changed.

    Even if we accept that Paul Stagg’s view is correct, in the following situations it is still difficult to say where the old and new versions of Reg 101 should split:

    (1) If an overpayment decision is only half-made and needs to be repaired, most likely because one of the targets wasn’t notified, and the Council started making the decision before April 2006 but the repair will be made after April 2006. My view is that the decision making process can be completed ahead of any Tribunal hearing as if it were the original pre-April 06 decision – just my view, that one, and therefore not as authoritative as Paul Stagg’s view
    (2) A pre-April 2006 decision has been overturned by Tribunal or Commissioners because the Council failed to notify all targets. CH/3622/2005 says a new decision should be made now, but if we accept that the presumption against retrospectivity applies to HB overpayments the new decision will be remade under the old Regs, not the new ones
    (3) An overpayment was caused by misrepresentation or official error before Oct 2001/April 2006, and that representation or official error remains the cause of overpayments made after that date. I do not know what the correct approach should be to the payments made after April 06: it could be that you say the date of the misrepresentation or error is the key, or the date of the payment is the key. Until the Commissioners get to grips with one like that, we will not know.
    (4) A payment made after Oct 01/April 06 includes arrears of benefit for a period before that date (whether it is a one-off payment of arrears or a regular payment made two or four weeks in arrears). Again it’s only my view, but I think the date of the payment is the key, not the period it covers (unless the overpayment has an earlier cause as in (3) above)

    I think that sums up all the follow-up points that delegates raised. Until we get our next dollop of case law, our opinions about these matters are pure speculation. So lets keep a look out for new output from the Commissioners.


    We have had scenario 2 happen to us. The authority had a case going through the commissioners prior to the changes in the Regulations etc (CH2529/2005).

    The Commissioner stated that the tribunal should have remitted the decision back to the authority to make a new decision in accordance with CH/4234/2004. This seems a little unfair because the tribunal was held on 10.12.04 which was some time before CH/4234/2004 came out. However, we are now post April so not quite sure what regs we should be using. We have gone with making a decision under post April regs. The claimant has appealed again although we are not at tribunal stage. It seems that we will not know the definative answer to these issues for some time!


    Oh well, I’m currently preparing a submission to commissioners on this point.

    We had an OP from October 2004 to January 2005 which we decided to recover in March 2005. So no issue there then as to what law applies.

    It was caused by the claimant starting work but then half way through the OP period he moved out. So we subsequently decided to recover part of the OP from the claimant and part from the landlord. There then followed a number of appeals leading to slight revisions in the OP but no change to the recovery targets.

    The last revision took place on 13 April 2006. “Uh – oh” I hear you cry – so this is where our problems started

    At tribunal the chair decided he could revise our decision and recover the whole amount from the claimant as he considered the new version of regulation 101 applied to our decision as we revised it on 13 April 2006.

    The claimant has appealed to commissioners and we’ve now received a direction to provide a submission on the matter.

    My view is that the regulations applicable at the time of the original decision should have applied at the time of any revisions and at the tribunal hearing (Plewa and all that) as the change to the law substantively affected the claimant’s case. But I haven’t got a clue what sort of argument I’m going to use or whether to admit I don’t know and throw myself at the mercy of the tribunal only for my submission to be roundly criticised by the commissioner 😳 .

    Any comments greatfully accepted!!

    Kevin D

    Howabout taking the classic DWP approach (a la Bowman / Selby):

    Dear Mr Cmmr,

    These are all of the options [set out], courtesy of lots of really good stuff nicked from Peter Barker & Paul Stagg plus a bit from Derek Stainsby (see attached [various training notes and web forum threads]). Gosh, this saved us lots of time, I can tell you!

    We know our position appears to be contradictory and, in fact, we are terribly confused. Please, can one of you clever chaps sort it out? Preferably, definitively. That would be really great.

    PS: We don’t really care which way it goes. We just want to know which way is in fact correct. Or, is there a third way? Preferably out of here; an escape route…. Er sorry, getting a bit carried away now….

    Yours brutally honestly

    A Benefits Bod



    Thanks for the advice (again) Kevin.

    Escape route??? *Pictures Steve McQueen jumping barbed wire fence on motorbike and landing in Switzerland only to be told as a PFA he has no right to reside*


    Just found an interesting passage in the commentary to reg 101 of the 15th edition of CPAG which states:

    [i:698fc0f4a7]”If there is a change in the law during the review process, the officer carrying out a first stage review and a Review Board (or tribunal) must apply the law as it stood at the point of the decision under review: R(Nicholson) -v- Leeds CC HBRB (2000).”[/i:698fc0f4a7]

    So you can guess my next question…………….anyone got a copy of this case?

    Kevin D

    Funnily enough, Nicholson was considered in “Bibi”:


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