Terms & Conditions

[peterdelamothe]

Just received a detailed list of directions from a District Chair / Deputy C about an overpayment case. In it he confirms that all overpayment cases are stayed (mentioned elsewhere on the site) but he also enclosed a copy of CH/4234/2004. Strange numbering for a decision issued on 12 May 2006. The case is here:

http://hbinfo.local/menu2a/cdoverpayments/ch_4234_2004.doc?

The key paragraphs appear to be 59 – 62 and the suggestion that LA’s have got the decision making order incorect as well as their understanding. In particular, the Tribunal of Comissioners seem aghast at the “erronenous idea that the legislation provided for overpayments to be recoverable from only one person would not have taken such a hold”.

The suggestion in the direction is that this judgement could make all overpayment notification defective where HB was paid, at least in part, to a third party as the requirements in, say para 60, are clearly not met by IT systems. Indeed, it seems to me that the Commisioners are being somewhat unrealistic in almost expecting such individual decisions to be made but they would say that is not their problem.

Personally, I have never seen anything wrong with making all parties liable for an overpayment right at the start but I fought a losing battle on that one.

I know there was another thread on this decision but it didn’t really get discussed in the detail it should have. I think this is a key decision.

Comments please!!

[markp]

Stayed on your patch or nationally?

CD is a little light reading isn’t it!!

Our system notifies both parties of an OP (in the case of third party payees so both parties should be aware that they could be asked to repay the debt but, at present, we decide whom to recover from and invoice, debit schedule etc.

Does this decision mean that we should be asking both parties for repayments or that we can split OP’s between claimants and landlords? I can see the possibility of gaining OP x2 if both parties should be asked to repay it and I don’t see that this is the intention (but nice for the LA to get extra cash!)

Am I right or have I missed the point (after all it is pre 9.00 am!!)

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

[peterdelamothe]

Ita a national staying decision. I agree its hard work reading and grasping it but I think we all need to!

[aosulliv]

At the TUG meeting for Sutton yesterday, it was confirmed that overpayment appeals have been stayed by the President of TS for three months.

Advice given by a DC was that authority’s may want to trawl outstanding submissions awaiting listing to ensure that the bundle contains decision notices to all affected parties (claimant, landlord, partner, other person whom recovery may be sought).

This only affects cases where a decision that there is a recoverable overpayment was made between October 2001 – April 2006.

No real guidance given on cases that have already been listed for hearing, except to say that the above could be mentioned to the Chair on arrival.

[Anonymous]

Well, [b:f287a7f9a4]IF[/b:f287a7f9a4] this decision is not successfully appealed (and the staying instruction suggests that someone has applied for leave to appeal) I believe it settles the long-running problem of the right to appeal against the Council’s selection of recovery target A over recovery target B where it had a free choice.

The decision is concerned with Reg 101 as it stood between October 2001 and April 2006. Under the prescribing powers in s75(3) of the Administration Act, the only way to interpret Reg 101 in that period was to say that an overpayment is recoverable from the persons prescribed therein [b:f287a7f9a4]in addition [/b:f287a7f9a4]to the person who received the money if that is someone different. The decision should have been made to that effect, rather than only notifying the person from whom the Council proposed to recover.

The selection of one of those people as a target for further recovery action is essentially a private matter for the Council, with no right of appeal. This renders obsolete the cases of Chiltern and R(H) 3/04 with its uncomfortable fudge of a right to appeal but on JR grounds only.

From April 06, the prescribing is clearer: Reg 101(2)(a) specifically prescribes people from whom the overpayment is recoverable [b:f287a7f9a4]instead of [/b:f287a7f9a4]the payee (people whose error caused the overpayment and people who should have known about an official error); Reg 101(2)(b) does not say “instead”, so the overpayment must be recoverable from these people (claimant and partner in “no fault” overpayments) [b:f287a7f9a4]as well as[/b:f287a7f9a4] the payee.

The right of appeal is confined to the legal question whether the overpayment is in principle recoverable from either person; the choice between them where a choice exists is not a decision that carries any right of appeal.

The Commissioners are guided by the case of B v DWP, where a claimant had overwhelming grounds for a compassionate qwrite-off and her failure to disclose a key fact was completely understandable and innocent. But the fact of the matter was that her error caused the overpayment, so it was recoverable from her. Whether it should in fact be recovered was down to the “executive discretion” of the DWP and there was no right of appeal. There is a clear separation between the technical stage of establishing how the overpayment was caused, then a common sense stage of deciding whether it’s fair to recover. Only the former has a right of appeal.

This whole area has been a mess for years and the new decision clears it up very well indeed … if it survives in the Court of Appeal that is!

[aosulliv]

Appeals have been stayed whilst the President is on leave. He thought that there would be a request for leave to appeal so did not want the hassle of reviewing decisions made in the intervening period.

[Anonymous]

Three months!?

Nice work if you can get it

[Anonymous]

Actually, that’s unfair. Three months is the time limit for seeking leave to appeal to the Court of Appeal.

[Nicky]

[quote:9082393ad1=”peterdelamothe”]I know there was another thread on this decision but it didn’t really get discussed in the detail it should have. I think this is a key decision.[/quote:9082393ad1]

I raised this decision a while back as I thought it would cause problems but it didn’t get any discussion started so assumed I was the only one worried!

[jmembery]

I have obviously missed something somewhere (probably something very obvious), in para 59 it says “Equally, any person from whom it is decided that an overpayment is recoverable is entitled to a decision which shows from which other persons the local authority is also entitled to recover the overpayment.” What reg/regs cover this?

Thanks

[peterdelamothe]

What is also interesting is the clear message that the number one priority for LA’s is to recover public funds and if the claimant cannot pay the money back then the landlord should . It is ironic that LA’s have been criticised so long for this policy and DWP changed the rules specifically after pressure from landlords. I wonder if they would have done so had this decision been issued earlier?

Secondly, I would suggest that almost every decision issued prior to april 2006 is defective. Any appeal made by a claimant must suceed if only because the Tribunal has to set aside the decision – see para 61.

[Nicky]

I’ve just had a letter from TTS in Cardiff (albeit still on TAS headed paper) saying:

“The hearing of all Housing Benefit Overpayment appeals is being delayed until the issues raised in the ruling of the tribunal of the Commissioners, in CH/4264/2004, have been resolved”.

[peterdelamothe]

[quote:c9b7554aaf=”Nicky”][quote:c9b7554aaf=”peterdelamothe”]I know there was another thread on this decision but it didn’t really get discussed in the detail it should have. I think this is a key decision.[/quote:c9b7554aaf]

I raised this decision a while back as I thought it would cause problems but it didn’t get any discussion started so assumed I was the only one worried![/quote:c9b7554aaf]

Nicky – apologies. We should have listened to you first time!

[Author]

Posts