overpayment – landlord does not know claimant moved!

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  • #22511
    Anonymous
    Guest

    Have read all the stuff on Hbinfo – and have re-read the regs etc etc. Have just had argy bargy with appeals officer.

    This is just so confusing and we have different agendas of course.

    Please can someone tell me – if the landlord says they did not know their tenant had moved out – and they received the cheques does this mean we can’t recover from them?

    It seems to me that the new regs from April pretty much mean that you would recover from the claimant in nearly all cases.

    #8379
    Anonymous
    Guest

    Essentially I think you are right.

    If the Council was also unaware the tenant had left, it might be possible to argue that a landlord directly caused an overpayment by negligently failing to know that the tenant had moved and thereby also failing to inform the Council. I think that is always going to be a weak argument alongside the more obvious immediate cause of the overpayment being the claimant’s failure to tell the Council they had moved.

    If the overpayment is caused by official error, again Councils might want to argue that the landlord should have known the tenant had gone and should therefore by extension have known also that they were being overpaid.

    The trouble in both situations is that it is quite reasonable and normal for many landlords to have no direct contact with a tenant, especially on site, for weeks or months at a time. Perhaps a landlord who is receiving HB payments has more responsibility to keep in touch, but I think visiting at least as often as the HB payment frequency is tantamount to harassment. Tenants are entitled to be left alone as long as they pay their rent and don’t break the terms of their tenancy – unless there are rent arrears or complaints about tenants’ behaviour, there really isn’t any reason for a landlord to be constantly snooping round. So how are they supposed to know that a tenant has disappeared in the last few weeks?

    Therefore I think there will be fewer cases in practice where a landlord is caught by either limb of the new Reg 101(2)(a) than you might think at first sight. It will take lots of lovely appeals for us to form an idea of the line the Tribunals and Commissioners are generally going to take.

    #8380
    Anonymous
    Guest

    Thank you Peter for your response – altho it hasn’t cheered me up much, its hard enough to recover HB overpayments as it is.

    The most frustrating thing for me is that the landlord in question when they appeal, always always claim they have no knowledge and state that they accepted the money in good faith.

    The usual tenants for this landlord are more likely to have social problems than not – and the HB never covers the actual full rent charged. Im do not think it is unreasonable for a landlord who let property to less responsible tenants to be keeping more track of what is going on.

    But I can’t say that of course.

    #8381
    jmembery
    Participant

    Caroline.

    The only argument that I can think of NOT to switch recovery to the claimant is to ask your appeals officer what evidence he/she has that the claimant [b:26dd7265a2]deliberately[/b:26dd7265a2] did not report a change of circumstances rather than just forgot.

    (ii) there has been a [b:26dd7265a2]deliberate failure [/b:26dd7265a2]to report a relevant change of circumstances contrary to the requirement of regulation 88 (duty to notify a change of circumstances) and the overpayment occurred as a result of that [b:26dd7265a2]deliberate[/b:26dd7265a2] failure; and

    #8382
    Anonymous
    Guest

    I don’t think that will help the Council.

    The above extract is from Reg 101(1) – circumstances in which a landlord is exempt from recovery by virtue of regs made under s75(3)(a) of the Administration Act – basically where the landlord grasses up a fraudulent tenant.

    But Reg 101(2)(a) prescribes people from whom an overpayment is recoverable [b:1860791b23]instead of [/b:1860791b23]the person who received the money – in other words, it widens the landlord exemption and, in my view, makes Reg 101(1) otiose into the bargain. The very strong obiter remarks towards the end of the recent Tribunal of Commissioners case confirmed that:

    – that is indeed what Reg 101(2)(a) now says, and
    – there is authority under s75(3)(b) for it to do so.

    So it doesn’t matter whether the claimant’s failure to report that s/he had moved out was deliberate or not – all that matters is that the overpayment was caused by that failure, and Reg 101(2)(a) applies. This is the problem that Councils have got since April – many would, in the past, have concluded in a judge-proof way that recovery from the claimant was impractical and reluctantly decided to chase the innocent landlord. Now they cannot do that.

    #8383
    Anonymous
    Guest

    Hi

    I work on the appeals team at the LB of Haringey.

    My understanding of the new Reg 101 in relation to when a claimant moves address and payment is made to the landlord is this:

    Reg. 101 (1) (bb) – the authority can recover an overpayment from the landlord if they notify the authority that they suspect an overpayment has occured.

    Reg. 101 (2) (a) – the authority cannot recover an overpayment from the landlord if they failed to notify the authority of the change (& so did the claimant), if the landlord is ignorant of the change (or claims to be) as the claimant would not have been ignorant of the change & so would be liable due to their failure to notify the change.

    This seems odd. Does it mean a landlord should keep quiet if they suspect a claimant has moved? I have a case where the claimant has notifed us that she moved several months previous, payment went to the landlord & we are seeking to recover from the landlord, who has appealed saying he did not know of the change. I’m very confused, it will be interesting to see how it fairs at tribunal.

    #8384
    Anonymous
    Guest

    Well I have requested and been allowed to go on the HBINfO op course on 18th October so hopefully it will all become clear and I can report back to everyone. 🙂

    #8385
    Anonymous
    Guest

    Thought I’d link this scenario to this thread:-

    Claim cancelled 1st May 2006…info from Council Tax advising that claimant had contacted them at the beginning of April to say that they would be moving out at the end of the month…no further contact from claimant, but the landlord advises us in June that he has a new tenant and that the old one absconded ‘early May’ (so technically we didn’t know that the claimant had actually left the property, and there is no evidence to suggest deliberate failure to report a change by the tenant; in fact, the initial call to Ctax suggests that she was intending to tell us but simply forgot).

    This results in an overpayment. We pursue recovery from the landlord (as he was paid direct)…he’s arguing that he didn’t know that the tenant had vacated, because he was on holiday mid May, and that the reasonable course of action would be to cancel from the date he returned(!!?!!)

    Now, could it be argued that he was ‘negligent’ (in Benefit terms) with regard to his failure to know that this tenant had vacated 2 weeks prior to his holiday? Could it be argued that he really should have contacted his tenant to inform her that she wouldn’t be able to contact him for a couple of weeks as he was out of the country (in case of emergencies etc). If he had attempted to contact her he would have realised she had left.

    Is this a reasonable argument, on our part, to pursue recovery under the revised reg 101?

    #8386
    Anonymous
    Guest

    I think, Andy, as you probably will suspect, that what is (and therefore isn’t) reasonable will ultimately be decided by tribunal / caselaw.
    But my feeling is that you may be left clutching a handful of straws on this one, as your landlord seems to know the regs rather well. 8)

    C’est la vie….. or as the French say, “That’s life”. 😉 8)

    #8387
    markp
    Participant

    In Andy’s scenario the OP relates to the fact that a change of address has occurred and so under Reg 101 (1) (bb), as I read and understand it, the OP would be recoverable from either party with no immunity. One could, in that scenario, recover from the L/L.

    I think, using the arguments Peter B has put forward, you could make a case for recovery from the landlord in Caroline’s scenario but it would not necessarily be as strong a case as it could be. Recoveryfrom the claimant might be preferable in that case as the test of culpability is more easily proven against the claimant there.

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

    #8388
    Anonymous
    Guest

    Mark P, that’s what I thought…

    Jon P…have we misunderstood reg 101 (1) (bb) then?

    I’m getting more confused by the minute? 😥

    #8389
    Anonymous
    Guest

    The way I see it, Reg 101(1)(bb) stops the landlord from claiming immunity under the “grassed-up-tenant” rule. But that doesn’t mean that the overpayment is recoverable from the landlord, it just means that Reg 101(1) doesn’t apply. To decide from whom the overpayment is recoverable, you need to look at Reg 101(2) instead. You could still end up coming to the conclusion that the overpayment is recoverable from the claimant instead of the landlord if you decide that the claimant caused it by innocently, negligently, recklessly or deliberately failing to tell the Council s/he had moved. The overpayment will only ever be recoverable from the landlord if:-

    – it was caused mainly by the landlord, or
    – it was caused by an official error that the landlord should have known about, or
    – it was caused by no-one’s fault.

    #8390
    Anonymous
    Guest

    Sorry to sound a bit thick here, Peter, but couldn’t we argue that the o/p was caused by the landlord’s failure to check that the tenant was still in the property prior to leaving the country, or is the dominant cause the claimant’s failure to report that she had left?

    Still going round and round with this…

    #8391
    Anonymous
    Guest

    Well that’s the millio dollar question isn’t it? I don’t know! My personal feeling is that the landlord is less to blame and cannot really be said to have directly caused the overpayment, but I am speculating and it will take new case law to establish a definitve line on this.

    #8392
    Anonymous
    Guest

    Andy
    This is what I was alluding to earlier when I was saying that case law will ultimately decide this area. :15:
    Is the course of action you are suggesting reasonable or not?

    I must admit I would tend to agree with Peter B about where the “fault” lies in this case, but I think it is very much a matter of interpretation and, if you do decide to go forward with htis one, I’m sure there are a lot of people (including Landlords 😉 ) who would love to know the result!!

    As for your earlier ref to reg 101 (1) (bb), Peter B sums it up very well (far better than I could – I love the idea of the “grassed-up-tenant” rule 😀 ) in his earlier post. 8)

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