Terms & Conditions

[nick dearnley]

I would respectfully suggest that the tribunal has made an error, in that, as Peter pointed out earlier, s75 makes all overpayments recoverable from the person who was paid.  Reg 101 only operates to protect the payee where there was an issue caused in specific circumstances by someone else that led to the overpayment.  And in any case, 101 as you quote says recoverable from "such other person, as well as or instead of the person who was paid."  That clearly allows recovery from the LL under s75, to me, as they were the payee.  If your quote from the decision is right, then the tribunal has missed out "..or instead of…" and has misinformed itself of the law, making an error in law and the decison should be set aside.

There is much caselaw on overpayment recovery, including R(H ) 6/06 which sets out how notices etc should be done.  It does this because once it is established that the overpayment may be recovered from someone else as well as the payee, the choice as to who to go for is in the authority's discretion, and that discretion is not appealable.  The targetted parties will, of course, have a right to appeal that the overpayment is not recoverable from them.

Practically, your overpayment is recoverable from both the LL as payee and the claimant.  You can then choose which.

[wh79]

Thanks Nick,

 

Reg 101 does ot say 'or instead of'' s75 does.  I referred him back to s75, but he said this was not applicable as our decision had said that the ovp was recvoerable from both, therefore we'd used reg 101.  R ( H ) 6/06 was also quoted in the sub. 

 

I had been pretty confident with the submission and decision, until he threw in the curve ball of reg 99, stating that this cannot apply to the claimant as she's no longer in existence.

[nick dearnley]

My mistake – it just refers to that phrase from s75.  I still think the tribunal was wrong, especially as you referred to 6/06, and I think you were right to be confident.  The point of reg 101 is surely to give limited escape clauses to LLs who have been paid when someone else might have caused the overpayment; if 'no fault' it must default to s75…and that is primary legislation.  Reg 101 must be subservient to s75 and the Act is what gives the power to make the regulation in the first place.  All very odd.

Good luck with the SOR.

[John Boxall]

I clearly dont know anything about the circumstances of the claimants death but Reg 102(2) (b) MIGHT put whoever was dealing with the affairs of the deceased in the frame as a possible target of recovery…………………..

Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

Wilkins Micawber, Ch12 David Copperfield

[wh79]

The judge did mention about an executor, however we are not aware of any executor, the Judge said that if an estate is below a certain value, it is not necessary to appoint an executor, whereas if the estate is above a certain value, then an executor or administrator must be appointed.  Due to customer being on benefit's the Judge took the stance that she was unlikely to have had an estate of any value, so potentially no executor.  (she was only in her 40's)

 

We are aware that we may have to contact probate to see if there was an executor.

 

101(2)(b) misrepresentation/failure to disclose – this must be a deliberate breach, if there is an executor and they made out that they were unaware that they had to notify benefits etc, then it could be said that it wasn't a deliberate breach. Obviously I'm just thinking of possible arguments that could be made against a decision.

Thanks

 

[John Boxall]

I suspected that that might be the case but thought that it was worth asking the question

Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

Wilkins Micawber, Ch12 David Copperfield

[Kay_Tade]

[quote=wh79]I have had an ovp caused by the death of the claimant, neither the LL nor LA were aware of her death until 6 months after she had died.  Therefore there was a substantial ovp.[/quote]

 

Going with the train of thought d-stainsby expressed, why was the LA unaware of the death? I note the judge didn't go down this route, so I assume he has seen no LA error there?

[sbenson]

Did you use CH/448/09 in your submission. That states that the deceased person or his executors cannot be held responsible for any Housing Benefit paid for after their death.

[wh79]

The LA were unaware of the death as we were never notified, neither were the DWP until the LA advised them.  The customer went by the name of Mrs O, however, her death cert was registered in the name of Mrs T.  (The LA were never aware of claimant using the name Mrs T).  A 'Tell us Once' form was never completed.  I have tried to find the death lists that C.Tax receive, but was unable, however any death list received would have been in the name of 'T' not 'O' and C.Tax wouldn't have realised that the c.tax payer 'O' and the person on the death list 'T' were the same person.

 

I hadn't used CH/448/09, this appears to be saying that the ovp is recoverable from the LL under s75.  I think we have lost as the DM's decision is that the ovp is recoverable from both claimant and landlord which is reg 101(2)(a).  If we'd only made the decision that the ovp was recoverable from LL under s75, we may  have won.

[wh79]

The LA were unaware of the death as we were never notified, neither were the DWP until the LA advised them.  The customer went by the name of Mrs O, however, her death cert was registered in the name of Mrs T.  (The LA were never aware of claimant using the name Mrs T).  A 'Tell us Once' form was never completed.  I have tried to find the death lists that C.Tax receive, but was unable, however any death list received would have been in the name of 'T' not 'O' and C.Tax wouldn't have realised that the c.tax payer 'O' and the person on the death list 'T' were the same person.

 

I hadn't used CH/448/09, this appears to be saying that the ovp is recoverable from the LL under s75.  I think we have lost as the DM's decision is that the ovp is recoverable from both claimant and landlord which is reg 101(2)(a).  If we'd only made the decision that the ovp was recoverable from LL under s75, we may  have won.

[sbenson]

Yes that commissioners saved me as we were not notified and landlord said he didnt know (although not convinced by this) we had son incorrectly listed as liable for Council Tax so death list not connected either. Landlord pursued and attended hearing which we didnt but Judge upheld our decision.

[d-stainsby]

The incorrect listing of the son as the liable person for Council Tax could arguably be an official error that caused the overpayment.  (See EMPRESS CAR COMPANY (ABERTILLERY) LTD. (APPELLANTS) v.NATIONAL RIVERS AUTHORITY UKHL 5 FEBRUARY 1998,  for an analysis of causation)

[Author]

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