Overpayment and underlying entitlement

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  • #39200
    mickn
    Participant

    I have a same sex couple that have been through several properties claiming separetly until they were established as a couple. Received max HB as I/S awarded and still in receipt of I/S but now as a couple. They moved addresses at the same time.

    Address 1 person A claims and awarded shared accommodation rate.
    Address 1 person B does not make a claim but at Address 2 gives this address as previous address.

    Address 2 person A claims and awarded 1 bedroom rate (completed form on move and informs us in receipt of high rate care Disability Living Allowance qualifies for Severe Disability Premium – this was not notified on claim at Address 1 therefore beneficial change)
    Address 2 person B claims and awarded shared accommodation rate.

    This repeats through Address 3+4 until found to have been couple from 25 Jan 11 part way through the claim at Address 1. I assumed he moved in but just bunked in the room.

    At address 2+3+4 i am fine with regards there is an overpayment but at Address 1 there is not an overpayment. If I add person B to make them a couple the 1 bedroom rate would apply instead of the SAR and the change is advantageous.

    But..

    Am i obliged when looking at the overpayment to view the whole period as a couple. To apply underlying entitlement from the initial address to offset the overpayment at the other addresses? or

    There is not an overpayment at Address 1 and as it is an advantageous change reported late additional benefit cannot be awarded.

    #111305
    Kay_Tade
    Participant

    Sorry, but this is a bit confusing. YOu may get some answers if you elaborate.

    Can’t see how SDP needs to be notified, they are either entitled to it or not.

    When did they first make individual claims, at what point did they become a “couple”, have they always lived in the same dwelling? if not when did this start?

    Sorry can’t be of help just got too many ?s

    #111318
    mickn
    Participant

    ‘relevant benefit rule’ yes, the 1 bedroom can be awarded for an additional period. I am left with 2 weeks still on the original dilema.

    At address 1 there was only the one application from person A and HB has been in payment since Oct 2010.
    At address 2+3+4 they both made separate claims as single people with a joint tenancy.
    It has been decided they are a couple as of 25 January 2011 (this is not under dispute).
    DLA at the high rate was awarded from 8 February 2011.
    They both moved into Address 2 on 15 February 2011, Person B gave his previous address as Address 1. Therefore it has been decided he was resident at Address 1 from 25 January 2011. Where person B lived prior to 25 January 2011 is a bit sketchy, he went with the sofa surfer option.

    This enough?

    #111338
    Anonymous
    Guest

    OK, so you have an award in place for Person A from October 2010, and there is nothing wrong with it until January 2011 – correct? Lets say you made an awarding decision from October 2010 and call that decision D1A.

    From 15 Feb 11, you made a superseding decision on the change of address: call it D2A. D2A includes the SDP and the 1-bed rate of LHA. Same again on two subsequent changes of address – D3A and D4A.

    Meanwhile, from 15/2/11 you have awarded HB to another claimant, B, by way of decision D1B. This is at the shared accommodation rate. You make superseding decisions D2B and D3B on the changes of address.

    Section 134 of the Conts and Bens Act says that two members of the same “family” cannot both receive the same means-tested benefit at the same time. You have discovered that they were a “family” when awards D1B, D2B and D3B were made. These decisions should be revised on the grounds of ignorance of a material fact. Claimant B has been overpaid. I believe you can recover this overpayment by deduction from A’s continuing HB because they were a couple when the overpayment was made and they are still a couple now – mind you make it clear that the overpayment is B’s and the deductions are a method of recovering B’s overpayment from A’s ongoing award. B is the “target” with the right of appeal.

    But what to do about Claimant A?

    He has had two changes of circumstance of which you were previously unaware. You therefore need to consider interposing a superseding decision from 25 January 2011 (D1.1A) … but will it make any difference? You haven’t specified, but I have the impression the accommodation is shared, in which case as a couple they still get the shared rate and there is no change. If I am mistaken about that and the shared rate has been awarded because they are YIs, they would be entitled to the one bed rate from 25 January as a couple. However, if you are not inclined to accept the reported change out of time, you will not make that decision and things will be left as they were from 25 January to 8 February.

    The claimant was awarded a relevant benefit from February 2011, and this can be picked up by a superseding decision under Reg 8(14) without time limit. The decision will be D1.2A and it must take into account the fact that the claimant now has a partner. There is an interesting point of interpretation here: in Reg 13D(2), the shared accopmmodation rate does not apply to a couple occupying shared accommodation if either one of them is entitled to the SDP – but as a couple, they can only get the SDP if they are both on DLA or, exceptionally, one of them is on DLA and the other is blind. Does Reg 13D mean they must actually have the SDP, or that one of them would if s/he were single? I don’t know. If it is the case that they must actually have the premium, well they won’t get it because only one has DLA. Therefore D1.2A is no different from the original D1 and the claimant gets the same rate of benefit … unless they are living in self-contained accommodation in which case they get the one-bed rate as a couple with or without the SDP.

    Still with me?

    Now we arrive at D2A. This must be revised, because it was mde in ignorance of the fact that the claimant has a partner. If they are in shared accommodation, D2A as revised will make them worse off because of losing the SDP (if you read Reg 13D that way …). Same goes for D3A and D4A, which will also be revised.

    So depending on how the eligible rent pans out, Claimant A has either been overpaid at the one-bed rate, or the eligible rent is unaffected by the partner.

    Also, there may well be means-testing implications arising from the aggregation in new decisions D1.1A and D1.2A, and in decisions D2A, D3A and D4A as revised: my comments above only apply to the eligible rent.

    Finally, if the effect of aggregating B into A’s means test is to make them better off than A’s original awards D2, 3 & 4A, you cannot revise those awards – you can only make a superseding decision from the start of the week in which the true facts came to light.

    #111351
    mickn
    Participant

    Thank you Peter, well detailed and I will be able to make a determination from this. Interesting point on 13D, I know what our system would award :O I will give it some more consideration before i make a final decision.

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