Overpayment and Underlying entitlement.

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    Mrs “Jones” is rumbled as working and claiming both HB and I/S in September 2005. We get the earnings figures, supercede the previous decision, award underlying entitlement for Jan – Sep 05 and create a large overpayment. She is advised of this in October 2005.

    In December 2005 (more than 1 month after the o/p was created) she comes back to us saying “I actually stopped working in Jun 05 and since then have been living on my private pension”

    Do we have to award underlying entitlement for Jun – Dec 05 again based on the pension or is she out of time? Are there any time-limits to underlying entitlement?

    Mayday 😕 😕


    “Do we have to award underlying entitlement for Jun – Dec 05 again based on the pension or is she out of time? Are there any time-limits to underlying entitlement?”.

    Martin – this is the subject of much debate on other threads. It is something I would hope that Paul Stagg could clarify next month in the HBINFO training sessions.

    The two positions are:

    DWP, who argue UL is subject to the normal one month dispute time limit.

    Almost everyone else, who point out that UL is not an award of benefit but a reduction in the gross amount of overpayment.

    In the absence of clear unambigious legislation, the claimant might be given the benefit of the doubt.

    chris harvey

    Peter’s response came before I could post this but I thought I’d throw my views into the ring anyway….
    My line of thinking goes like this:-
    Underlying entitlement reduces an overpayment and it looks to me as the overpayment previously calculated went up to Sep 05 so you cannot award underlying entitlement from October 05 onwards as there is no overpayment for this period.
    It appears you calced the overpayment using the info you had to award underlying entitlement up to Sep 05 and notified the claimant in October 05. She has a month to request a revision which she missed as her request came in December so you have a late revision. You should follow the rules in the D & A regs that deal with late requests for revision, ie are there special circs, is it reasonable and how long is the delay because the longer the delay the more compelling the reasons should be (the recent circular A13 was badly worded and talked about backdating and good cause for late revisions which may have confused some readers as it has nothing to do with good cause and the backdating rules).
    Its a question of fact in your particular case whether these conditions are met. If they are you revise your original overpayment decision with a new one.
    Quite separately you also have a change of circs in that the benefit you have awarded from October to December 05 is too low now she has stopped work. This is a late advantageous change and will normally be actioned from the Monday after she tells you about it ie December 05 (unless there are special reasons why she is late notifying you).


    I think there are three “issues” in your post.

    1) The period June – October 05 where you have a late reported change of circumstances that overlap an overpayment period.
    2) The period October – December 05 where you have a late reported change of circs that does not overlap an overpayment period.
    3) The whole reg 104 and time limits thing.

    To take them out of order.

    2) – is dealt with in Chris Harvey’s post. Not reported within 1 month, are there “special reasons”? I myself doubt that – “I didn’t tell you before as I was trying to fraudulently claim more benefit that I was really entitled too” would qualify, but it is your decision.

    3) – I think that UE is a “question arising out of the claim or the award” and is therefore subject to the usual one month or such longer period as you think reasonable limit. The big question is if you can retrospectively increase the time limit after you make your decision on the overpayment where evidence is subsequently provided. The DWP (erroneously in my view) suggest that you can only do this where the claimant has “good cause” for providing the evidence late. My view is that the regs place no such restriction on LA’s discretion.

    1) – Therefore, in my view you can retrospectively decide to extend the time limits for providing the evidence/info to calculate U/E and reduce the overpayment for the period June – October based upon the new information. You don’t have to do this, but I cant think of any reason not to.


    This subject will make for a really interesting debate on Paul Stagg’s sessions. I hope everyone will hone their arguments in advance.

    I think Chris’s analysis is exactly right, as long as we start from the position that an overpayment decision is a normal HB & CTB decision subject to the same time limits as any other decision when it comes to revision, supersession and appeals. If you have made your overpayment decision in the proper way withour any procedural error on your part, the claimant has a month to speak up and say why the decision is wrong.

    I know that many people argue underlying entitlement is a bit of a special case and is not subject to the normal time limits. I have never seen why that should be so. It may be that people are taking a remark of Lord Justice Keene in the Adan v Hounslow case out of context:

    [i:4497135420]”The analysis which I have set out accords with what seems to me to be the natural and ordinary meaning of the words used in Regulation 104. There is no justification for importing into them all the procedural requirements appropriate to the determination of an entitlement to housing benefit. It follows that in my judgment the case of ex parte Lord was, on this aspect, wrongly decided”. [/i:4497135420]

    It is important to recognise that Keene LJ is talking about the ruling in Lord, the previous authority on Reg 104 as it stood before October 2001. He is discussing the need to make a claim when the benefit period ends as a result of IS/JSA-ib stopping: if Lord were followed, it would already be too late in many cases to award u/e at the point when the overpayment is first discovered. Adan overturns that, and establishes that Reg 104 pre-October 01 should be read pretty much as it has appeared at all times since then: how much [i:4497135420]would[/i:4497135420] you have got if you [i:4497135420]had[/i:4497135420] claimed promptly.

    Those remarks certainly do not excuse claimants from adhering to the time limits for disputing a completed overpayment decision. Now then, but are there in fact any such time limits? This is the interesting point. In R(H) 3/04, a very messy decision about overpayment appeal rights that is now obsolete following the new decision in CH/4234/2004 in May, the Tribunal of Commissioners was adamant that an overpayment “determination” is something quite separate from the “relevant decisions” that Councils make on other issues:

    [i:4497135420]“In our judgment, it is clear beyond argument from the express provisions of schedule 7 noted above that the right of appeal provided in housing benefit cases for a person from whom an amount of overpaid benefit is determined to be recoverable under section 75 arises not under paragraphs 6(1)-(3) at all, but separately and exclusively under the express provision for it in paragraph 6(6); and such an appeal is by necessary implication an appeal by that person against the making of that determination … Such a determination was conceded by all parties before us not to be a decision made on a claim so as to be a relevant decision under paragraph 1(2)(a); nor can it be within paragraph 1(2)(b) as a decision superseding any of the types of decision there referred to.” [/i:4497135420]– paras 33 – 4

    The new decision doesn’t really dwell on this. If it is correct, it means that any changes made to an overpayment decision for any reason, be it underlying entitlement, target for recovery or anything else, are done outside of the D&A mechanism. There would therefore be no specific time limit to do anything – appeal, apply for revision, whatever. Whole swathes of the D&A Regs just don’t apply to things that are not “relevant decisions”. This point does not only affect the issue of underlying entitlement, this applies to all aspects of an overpayment “determination”, if such it is. The Commissioners need to revisit this point because CH/4234/2004, while it has stabilised much in the area of overpayment appeals, did not really turn its attention to the passage quoted above, so that passage arguably remains good law (in the sense of valid law, whether it is of good quality is another question).

    chris harvey

    Just following on from my last post, if you decide there are special circs to revise your overpayment decision then for consistancy you should also not apply the advantageous change supercession rule because the rules in D & A regs 5 and 9 for both these are the same.
    And to answer the original question is there a time limit for underlying entitlement? then on its own the answer is no, but there is a time limit for supplying info. Providing you ask the claimant to supply info you need to calc underlying entitlement and give them the month to supply it, then afterwards I think it is OK to make a decision with the info you have ie not to award underlying entitlement. They have the usual month dispute period to provide the info and get the decision revised and in the absence of special reasons that is the end of the road as far as I can see and the gross overpayment should stand.
    I take jmembery’s point though in that the month to supply info has the proviso “or longer if reasonable” which could be used to revisit the decision.

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