Overpayment of HB

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  • #23296
    Neil K Day
    Participant

    Any advice would be welcome.

    We have an overpayment for 06/04/98 to 27/02/05 totalling £19,000 due to a contrived tenancy.

    The tenant has since died.

    There was a partner on the claim. My understanding is that we wouldn’t be able to pursue the partner for the period 06/04/98 to 01/10/01.

    We could pursue from 01/10/01 onwards but we would need to re notify and open appeal rights. A bit more information is that the tenant died abroad and is still there as the partner has no money to bring him back. This is obviously a difficult time for the partner.

    Do you think we should pursue the partner for some of the overpayment or write it off.

    Thanks

    #11843
    Anonymous
    Guest

    I think you must attempt to recover the whole of the overpayment from the estate of the deceased claimant. You cannot recover from the partner because they are no longer a couple at the time that you are attempting recovery.

    Out of curiosity, why did it take so long to decide that the tenancy had been created to take advantage of the benefits scheme?

    #11844
    Neil K Day
    Participant

    Cheers Andy,

    There is no estate unfortunately.

    The op was raised in Sept 05 following a investigation by our Fraud dept.
    A Land registry document was received which showed a discrepancy.

    #11845
    Anonymous
    Guest

    On the partner issue, if Paul Stagg and Commissioner Edward Jacobs are correct about retrospectivity and in addition if Paul Stagg is correct about the proper construction of Reg 101 in respect of partners, you are right: the partner is, according to Paul’s interpretation, a prescribed person from whom the overpayment is recoverable in any case where they were there at the time when benefit was paid (see the version of Reg 101 in force between October 01 and April 06). In his view, it is only the method of recovery by deduction that is limited to cases where the claimant and partner remain a couple. You can still recover from the partner by other methods.

    Andy’s note of caution about contrivance is an important one. You need to choose your words very carefully. Deciding whether a tenancy was created to take advantage of the HB scheme is not generally the kind of thing you can change your mind about later. If you decided to award HB without having been told something important, and that information has now come to light, you may be able to revise your past decisions for ignorance of a material fact. Had you known that information at the time, what decision would you have made? If HB would have been refused, what would have been the grounds? That’s the way to approach it.

    Sorry if this sounds like a late challenge for the pedant of the year award, but to say an overpayment has been raised because of a contrived tenancy is to leave yourself vulnerable to about half a dozen appeal tactics attacking the validity of your decision.

    #11846
    Anonymous
    Guest

    Peter – do you have a link to Paul Stagg’s comments on this subject?

    #11847
    Anonymous
    Guest

    He is the author of the commentary on Regs 101 and 102 in Findlay. I’m waiting for my 19th edition to be delivered and at the moment I am still using the 17th – in that volume the comments on retrospectivity are under Reg 101 and the analysis about partners as targets for recovery is under Reg 102.

    On the training courses that he ran for HBINFO in the autumn, Paul stood by this analysis so it is still the way he sees things.

    #11848
    Anonymous
    Guest

    Right, thanks

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