Overpayment appeal / Underlying entitlement

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    I have referred a landlord appeal against an o/p to The Tribunal Service and the case is due to be heard in 3 weeks. The circs are:

    1. HB provisionally assessed on £0.01 income as a self employed / new business. Accounts were requested twice and never supplied.
    2. HB/CTB superseded for the whole period of self employment and o/p raised £6,464. The claimant’s decision notice referred to underlying ent and asked for accounts, but none were provided.
    3. O/P was recovered from landlord [b:930d686b90]who duly paid [/b:930d686b90]it in Jan 2006.
    4. The landlord appealed in Aug 06 and said we shouldn’t have recovered it from them as it arose from a change in the tenant’s personal circumstances.
    5. The Tribunal Service accepted the late appeal as duly made.
    6. Full submission sent to TAS 29.11.06, with claimant as a 3rd party.
    7. The basis of our case is that prior to April 2006, the LA had a discretion as to whom to recover the o/p from etc.
    8. After receiving the bundle of docs and the TAS1, the claimant has now provided details of his income on 29.12.06 which show his business was runing at a loss and full HB/CTB should have been granted.

    Having discussed the case with another senior officer, we have decided that underlying ent should not be granted as this late stage and I intend sending the new documents to the Tribunal service and proceed on the same basis.

    Of course, if the Tribunal allows the appeal and it is then to be recovered from the claimant, we will have to consider u/e then.

    – Would anyone else agree with this course of action?

    – Is there a commissioners case about time limits for underlying entitlement?

    – Am I right is saying that prior to April 2006, a landlord can appeal against the decision to recover from them, but not whether a o/p is recoverable per se?

    Any comments would be appreciated.


    First question has to be what is a provisional assessment?

    I assume you are not referring to a PoA. If not, what were your grounds to revise/supercede?

    I think you could well find yourself with problems from the outset here.


    It is now firmly established, following CH/4234/2004, that the Tribunal cannot look at the choice you have made to recover from one party rather than another where the overpayment is recoverable from both.

    The overpayment probably is recoverable from both – there does not seem to be any suggestion that Reg 101(1) applies.

    However, it is not just the “target” issue that is under appeal – the appeal is against the whole of the decision that an overpayment is recobverable from the landlord. That includes the fact that an overpayment exists at all.

    If the claimant would have been entitled to all the money anyway, I would expect the Tribunal to conclude that there has been no overpayment. It doesn’t matter that it is now too late to revise the entitlement decisions in the claimant’s favour – Reg 104 means you have to reduce the overpayment, most likely to nothing in this instance. The Tribunal will step into your shoes and do that.


    The decision to supersede was made in accordance with Regulation 7(5) of the D&A regs 2001

    [i:54b6de7e29]Where the appropriate relevant authority requires further evidence ……….the decision may be superseded…….. where the applicant does not provide such evidence or information within the time allowed ……….[/i:54b6de7e29]


    Something of a side issue, but it may have some relevance if you are going to be looking at underlying entitlement.

    An overpayment of £6,464 presumably covers a relatively long period of time, during which the claimant’s business has been running at a loss. So how has he financed the loss-making business, and what has he been living on himself?


    Reg 7(5) does not provide grounds for supersession in its own right, it is there for cases where the claimant has applied for supersession and you are unwilling to do it without further evidence. If the claimant doesn’t provide that further evidence you deal with their supersession application on the basis of what you’ve got, and in most cases you will probably feel unable to uphold the application. You cannot supersde a decision on your own initiative under Reg 7(5).

    In any case, it sounds to me as if you have purportedly revised all the decisions that you ever made, not superseded them. But again the grounds for revision seem to me to be a bit thin here.

    I think you may struggle to convince the Tribunal that there is a valid overpayment decision to kick off with, but even if you succeed there I would expect the Tribunal to decide that the claimant’s circumstances did support the amount of benefit paid and that there is therefore no overpayment.


    Thanks Peter. I really appreciate your input.

    I really do think I can prove that the decision to supercede was correct. It is the underlying entitlement aspect that I am concerned about. What about the time limits? The customer has provided the information 18 months late, despite 4 requests.


    There was a very similar discussion to this one not long ago:


    The key point about time limits and underlying entitlement is that those who argue that such time limits do exist would recognise the following time table of events leading to an overpayment decisions:

    1. Council discovers on Date B that there’s something wrong and it appears on the face of it that there has been an overpayment since Date A

    2. Council invites the claimant to shed some light on what they have been up to between Dates A and B

    3. Council hears nothing and makes an overpayment decision with no underlying entitlement on Date C

    4. The weeks roll by …. Date C plus one month comes and goes

    5. As far as the Council is concerned, the matter is closed: there is no further scope for reducing the overpayment because the time limit for revision under Reg 4(1)(a) or (b) has passed.

    6. On Date D, some months later, the claimant produces the goods and appeals. The Council sends it over to TS as late unsupported

    7. TS reckons there is a reasonable prospect of success and accepts the appeal – there will be a hearing.

    The effect of this is that all issues are now open again. If TS has accepted the appeal, it’s as if the claimant applied for local revision the day after Date C. The overpayment decision is very much alive and amenable to local revision under Reg 4(1)(c). You might as well do it, because if you don’t the Tribunal will. It doesn’t matter that it’s too late to revise under Reg 4(1)(a) or (b) – the acceptance of the late appeal brings Reg 4(1)(c) into play. It’s a different ground for revision and it very much applies.

    Kevin D

    [Edit]: crossed with Peter’s response.

    [quote:dfa76899d5]What about the time limits? The customer has provided the information 18 months late, despite 4 requests[/quote:dfa76899d5]

    These earlier threads may be of interest:


    It’s fair to say that most of the threads were argued; how shall I put it? Ah yes; vociferously…..

    Happy reading….. :).


    I seem to be in a minority of one but I do not think you have any grounds to revise or supercede.

    As far as I am aware, there is no such thing as a provisional assessment. You have either made a PoA (if it was an undecided claim) or you have made a decision.

    You had a change in circs – claimant became self employed. Claimant made an application for the decision to be superceded.

    You effectively superceded your decision when you used 1p income.

    My view is that once you have superceded the application “dies” in the same way a claim “dies” once a decision has been made on it.

    I am not convinced you have grounds to supercede (or revise) on your own motion. If I am correct that the application dies once a decision has been made on it, any request for information which may be outstanding becomes meaningless.

    Like Peter, I think it more likley that you have revised but a similar argument applies.


    Thanks for all of your replies. The commissioner’s decisions you laid out are really helpful.

    Pete – Provisional assessment wasn’t a good choice of wording and it wasn’t included in my submission to TS.

    Was it not reasonable for the local authority to request accounts after a reasonable period that someone had been trading? The amount of earnings could reasonably have changed. The information requested was made in accordance with HBR 86, and nothing more was heard for 18 months.

    Yes, I do feel at odds with this decision, but not with the decision to supersede.

    As we have a Tribunal date I am going to proceed with the case and send a further statement and evidence etc. I’ll leave it to the Tribunal to decide.

    Thanks again for all your advice and suggestions.


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