Terms & Conditions

[clamar]

Can anyone give an opinion on this please? I have to prepare an appeal submission and I’m having doubts. Here’s the scenario. A claimant aged 67 has a fairly long standing HB claim. He gets savings credit. Prior to April this year the LA receives an ETD showing a new AIF of £129.98 and SC of £11.51 from April. Something goes wrong and a decision letter is issued that shows the AIF as “£0.00”. The HB is marginally different from the previous award. A few months later the error is discovered and corrected which reduces entitlement by £6 per week. The result is an HB overpayment of £69. He’s told that he’s liable because he should have told the LA that the AIF of £0.00 as shown on his decision letter was incorrect. The question is this: as over 60s don’t have to advise about AIF changes is it reasonable to expect him to have realised he was being overpaid and/or has he materially contributed to the overpayment? All opinions much appreciated.

[Kevin D]

A techie point….

Whether the clmt contributed to the overpayment is irrelevant. The test is whether the clmt contributed to the [b:9250d41492]mistake[/b:9250d41492] that led to the o/p.

The mistake appears to be the LA made an input error. Can’t see how the clmt contributed to that.

Next: could the clmt reasonably have been expected to realise s/he was being overpaid at the time benefit was paid / allowed or at the time of any notices relating to the payments / allowance of benefit?

As was succinctly put in another recentish thread, the crux is probably going to be the clarity (or otherwise) or your notification letters and how much experience / understanding the clmt has.

In short, it’s a judgement call. Er, good luck.

[Bobkirkpatrick]

Areyou really going to go to a Tribunal over £69?

[clamar]

Thanks Kevin. I’d say the letter is pretty clear. It shows the calculation, contains a clear and prominently placed instruction more than once to notify the LA if any income figures are incorrect and warns that a failure so to do may result in a recoverable overpayment. E-mails from the claimant indicate that he’s highly capable in general terms but he’s saying that he doesn’t know much about AIF. I’m just thinking that if it’s the Secretary of State’s job and not the claimant’s to advise as to changes to SC and AIF then is it appropriate to expect him to tell us, or even know, that we might have used the wrong AIF in our calculation or to expect him to realise that he’s being paid too much HB? I know it’s a judgement call but I’m just wondering what view others would take.

[clamar]

Bob, where to draw the line on cost effectiveness is an argument I’ve had here before. I don’t have the choice but I take your point.

[Stalbansbenefits]

£69? There was a case heard at Commissioner Level (CH/1854/2004) involving an overpayment of just £28.74…

I’m with Bob though. Even if it is recoverable (which is debateable), you don’t [i:70eea7af40]have[/i:70eea7af40] to recover it.

[Anonymous]

[size=9:3a2f565a04]If the entitlement reduced by £6 per week how do you get an overpayment of £69?[/size:3a2f565a04]

I don’t quite understand what went wrong to give rise to the overpayment…was this an input error by the LA, or mis-information from The Pension Service or what?

[clamar]

In reply to Andy, it was an inputting error which meant that the calculation only took account of his savings credit and no other income. The LA is relying on a paragraph in the decision letter which instructs claimants to advise if not all “income/benefits/pensions” have been included in the assessment and warns that an overpayment may arise if the income is higher than shown. My problem is that the letter shows “Assessed Income Figure £0.00” and I can’t think of a reason why a claimant should take a view other than that the LA has decided in its infinite wisdom to disregard his income other than savings credit for housing benefit purposes – especially since at the previous assessment he was on guarantee credit. In that case he’d have no reason to think he was being overpaid. It’s probably obvious that I’m less than enthusiastic about taking this appeal but I have to convince someone who outranks me.

[Kevin D]

It will boil down to the notification letters and what the clmt could, or could not, have adduced from the letters and on his knowledge / experience of the benefits system.

[b:472657784f]CH/0866/2006[/b:472657784f] is a recent CD that may be of interest.
new.hbinfo.org.com/menu2a/cdoverpayments/ch_0866_2006.doc

The term “assessed income figure” is not necessarily fatal to your case – at least not in my opinion. The clmt, presumably(?), was aware that his Guaranteed PC had ended as a result of his income increasing. You have stated that the notification letter sent showed PC(S) and nil for AIF. I think you could argue that the clmt knew his income was higher than “nil”.

It’s always worth bearing in mind that the test is not whether the clmt ACTUALLY realised he was being overpaid. The test is whether he could reasonably have been EXPECTED to realise that he was being overpaid (see [b:472657784f]CH/1307/2006 – para 15[/b:472657784f] confirming the distinction). And, the onus is on the clmt to show that he falls within the exception of [b:472657784f]HBR 100(2)&(3)[/b:472657784f].

{Edit}: In addition, the clmt doesn’t have to know the precise amount of the o/p – it’s enough if he could reasonably have been expected to realise he was being overpaid at all ([b:472657784f]CH/1497/2004 (p9); CH/1671/2005 (p14)[/b:472657784f]).

It’s far from the strongest case and it wouldn’t be surprising if a Tribunal found for the clmt. But, I don’t think it’s the worst case ever to take to Tribunal – at least not based on the info given.

[Anonymous]

Mr Deputy Commissioner Mark held in CH/2935/2005 that claimants cannot be expected to be the LA’s auditors in these matters. Her went on to say at para 35:

“35. If in fact a claimant does check the figures and turns a blind eye to an error that he ought to realise was in his favour, then such a claimant would not be able to take advantage of regulation 99(2). That claimant could reasonably be expected to realise that there was an overpayment. However, a typical claimant cannot reasonably be expected to read or understand the calculations, and if such a claimant does not read them, or tries unsuccessfully to understand them, then the council cannot assert that that claimant could reasonably have been expected, when each payment was made, to have realised that it contained an element of overpayment.”

I have pointed out many times that the everyday meaning of “to realise” is “to undersand fully or to be fully aware” [seeOED].

The “assessed income figure” is a technical term. Unless the LA took great pains to explain what it means (including the threshold above which income is “assessed”, ) it is unlikely that anyone except current or recently retired practioners could resonably be expected to realise they were overpaid in these circumstances.

[Kevin D]

On the specific point about clmts reading notifications (or not), my view is that Cmmr Mark’s finding(s) can be strongly challenged. In fairness, I’m not convinced that he intended to suggest, across the board, that clmts are not required to read notifications. If, however, that was indeed what Cmmr Mark was INTENDING to mean, there are several other CDs where the opposite was found and I would rely on those to argue (strongly) against any suggestion that clmts didn’t have to read notifications. I’d readily accept that the understanding of such notifications is a separate argument.

Just to refer to one or two CDs; [b:30f239235f]CH/0609/2004 (para 15); CH/4227/2004 (paras 48 & 49); CH/0361/2004[/b:30f239235f]. There are several others where there was no suggestion that the clmt didn’t have to read the notification letters – some of which were found for LAs, others found for clmts.

As for the usual jousting we have on “realise” and “be fully aware” 😈 , the words “….reasonably have been [u:30f239235f]EXPECTED[/u:30f239235f] to…” still precedes. The clmt does not need to be ACTUALLY aware – it is enough for awareness only to be reasonably expected.

[Stalbansbenefits]

Deputy Commissioner Mark seems to qualify his position slightly in a subsequent paragraph…

[quote:ddc1dff463]36. In CH/2554/2002, at paragraph 18, Commissioner Jacobs said that as the claimant was of normal intelligence he did not need to decide the extent to which, if at all, the claimant’s ability to analyse the information is taken into account. That was an approach taken by Commissioner Jacobs on the facts of that case. It was not a case in which the claimant sought help in filling in the form, nor was it a case in which the omitted income was of a kind which almost everybody of the age of the claimant received. There was also no special evidence as to the capacity of the claimant in that case to understand the financial information provided, and it may be that the council in that case provided the financial information in a much clearer form than in the present case. [/quote:ddc1dff463]

[Author]

Posts