overpayment – LA failed to act v claimant contributing.

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    Jo Gregory

    Claimant did not tell us that her dependant daughter had moved out in 2009.

    However, we received a housing benefit claim form from the dependant daughter (claiming for a room in a hostel)in 2009. We paid the daughter HB.

    On reviewing the mothers claim in 2011, we noticed the error. A large CTB and HB overpayment has been raised and I can’t decide wether its LA error or claimant error. The Claimant did not tell us about a change in her houshold. So can the local authority ‘fail to act’ on information that the CLAIMANT did not tell us about?

    The information was in the office (although declared by someone else. So should it be LA error or claimant error? :((

    Clive Hayward

    How about arguing that the o/p is recoverable because although it could be said to have arisen because of the Council’s failure to cross reference the daughter’s claim in 2009 with her mum’s, Mum “materially contributed” to that error (if it was one) by not doing what she should have done: reporting her change of circs?

    I’m assuming your claim forms and benefit notifications told her about her responsibilities.

    nick dearnley

    I’d go for it being a primary duty of the claimant to tell you about changes that might affect her benefit, and that the failure to link two seperate claims is not the main cause of the overpayment. You’ll have an argument at a hearing, but I’d apply the usual principle that it is for the person seeking to use an exception to a rule to show how they come within that exception (to paraphrase Judge Jacobs – CH/3439/2002). It would be up to you to show that there was no official error, but if there was official error it is up to the appellant to show they could not have realised there was an overpayment.

    Andy Thurman

    The regs are stacked in the LA’s favour so, despite significant administrative failings, I tend to agree with the claimant error being correct. (If dependant daughter has gone to a hostel, it suggests there may be issues with your claimant – possibly the sort of issue that could lead to a non-recoverable decision if it was official error but irrelevant on basis of facts as stated.)

    Couple of things I’d be looking at:
    1. When daughter claimed, did she mention previous address? Could someone at LA have led her to believe mum’s claim would be sorted too? Are you certain no contact was made?

    2. Is there really a large overpayment? Has UE been considered? (i.e. did tax credits stop?) I guess if PT/LHA that will make a difference on HB side.

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