Terms & Conditions

[Anonymous]

This will be of particular interest to delegates who have been on the Paul Stagg overpayment course (or who are going to the Leeds overpayment course on 27 November), but I hope it makes some sense to everyone else too.

It is clear from CH/4234/2004 that where an overpayment is recoverable from more than one “target” the LA must notify all/both. Councils have made many decisions in the past where there could have been two or more targets but they only intended to go after one and so they only notified him/her and not the other(s). Such decisions have been shown to be invalid by CH/4234/2004.

Decisions that are invalid for that reason now fall into three groups:

(1) – sleeping dogs. The solitary target who was notified did not appeal and the overpayment was recovered or is being recovered and everyone is happy. Best not to worry about them in my view, but if they get wind of the Commissioners’ decision and make themselves known I think you will have to deal with them in the same way as (2) below.

(2) – cases that are under appeal and are still waiting to go to Tribunal

(3) – cases that have already been to Tribunal and are now the subject of an appeal to the Commissioners

So how to deal with them? There has been a Commissioner’s decision on a case in group (3):

[url]http://hbinfo.local/comdecs/ch_3622_2005.doc[/url]

The Commissioner substituted the decision that the Tribunal should have made – it should have declared the Council’s decision to be null and void and remitted it to the Council for a fresh decision to be made. The main reason for this was that it was too late for the decision to be “patched up” by completing the notification process: there had already been a Tribunal hearing in the absence of one of the targets.

So, in summary, if a case gets as far as the Tribunal without one of the targets being a party to the appeal, irevocable prejudice has already been caused to one or more parties and it is too late to repair the decision. The Council must start all over again.

As for cases in group (2), I don’t see why the Council should not, even at this stage, complete the decision-making process by notifying the other target and inviting them to become a party to the appeal. The prejudice caused by the failure to notify will be rectified before any lasting harm is done – no-one will be deprived of their right of appeal. That is only my view, but people on the course asked me for it so I am giving it.

The above comments raise a fresh issue about retrospectivity, which I am going to put in a separate post.

[Debbie_Perry]

A claimant vacates a property, an o/p results and benefit was paid directly to the landlord. If a decision is made that the o/p has resulted from the claimant failing to disclose the fact that he had vacated then only the claimant will be a legitimate target for recovery. Would I therefore be required to send a decision notice to the claimant only?
😕

[markp]

As I understand Reg 101, although I am willing to be corrected, this case is the one exception where you can recover from the landlord. My understanding is that this is covered by para (1) (bb) of Reg 101. This is a specific addition to the corresponding Reg in the 1987 Regs.

Ducking for cover as the barrage is starting!!

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

[Anonymous]

Mark, I think Reg 101(1)(bb) is narrower than that. All it means is that Reg 101(1) doesn’t apply …. but that doesn’t stop Reg 101(2)(a) from applying to the claimant “instead of” the person who received the money. In fact, Reg 101(1) is pretty much redundant. It is impossible to think of a situation in which a landlord would need to rely on Reg 101(1) without Reg 101(2)(a) applying anyway.

So in Debbie’s case: if you are absolutely satisfied that the claimant caused the overpayment and the landlord did not, then yes there is only one target (assuming the overpayment was made after 10 April 2006)

[markp]

Thanks Peter,

As I was typing the reply I was thinking that there was a nagging doubt in my mind but couldn’t put the proverbial finger on it.

Is there now any time that an OP can be recovered from a landlord? It would seem not.

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

[David]

Mark

If there was a resident landlord I think that both could potentially be targets for recovery.

Also, is there anything wrong with splitting recovery? eg If it is several weeks or months before an overpayment is raised when claimant moves, I think the landlord could reasoanbly be targeted after a certain period, depending on the circumstances of the case. ie seek recovery from claimant for first period of o/p, but either could be targeted after this first period.

[Author]

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