Overpayment Recovery

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    I am aiming to be a posting freak like my manager Mrs Dring!

    I have an appeal from a landlord. In 2008 we made a decision that two of the tenants paying him rent were not liable, as we viewed the tenancies as a sham. We had paid the claimants in both cases. The claims were cancelled back retrospectively and overpayments raised. It was decided that these overpayments would be recovered from the landlord. He was notified of this back in 2008 and invoiced etc.. The debt has been passed to our legal team, and he is now wishing to appeal.

    If reg 101 (2)(b) is applied am I right in assuming that the onus is on the LA to prove that the LL misrepresented or failed to disclose a fact? If the LL was unaware that the CL was claiming HB, or we have no evidence that he was. Am I on shaky ground?

    He is of course out of time to appeal, but its for the Tribunal to decide whether to admit it, but coud be in the interests of justice!!


    Marlene ๐Ÿ˜•


    There are three seperate issues that come to mind. Firstly, did you have the power to revise the decisions in the first place? If the original decision maker was satisfied with the evidence then the LA cannot revise because of a difference of opinion (such as a manager saying I dont agree with that) . There would normally have to be some new evidence that had come to light.

    Secondly, you clearly must be able to show that the landlord misrepresented to obtain HB that was not due and that was the cause of the overpayment. There has to be some form of “conspiracy” (in a wide sense) to obtain HB. Otherwise, what would be the point of the landlord setting up what you say is a sham? The argument would have to be that the landlord was so inefficient in setting up a tenancy that he caused the overpayment …but that gets so tenuous most Tribunals would fall about laughing.

    Thirdly, how can the landlord fail to report if he was not getting the HB and might not have known the tenant was getting HB? You might as well deem all landlords responsible for all overpayments – “you might not have known that your tenant was getting HB two years ago. Well, HMRC has now realised a mistake has been made with his tax code. We dont know where he has gone but you are loaded so please pay up ….”.

    Finally, if your Legal issue County Court proceedings and he responds with I did not receive any monies and I know nothing of this, you are going to have to fight hard not to get it struck out. Did you even issue the landlord with proper decision notices?


    I aree with Peter D that you are on a sticky wicket with the landlord.

    Assuming that the awarding decisions have been properly revised and a recoverable overpayment results in both cases, you need to make the right “target” decision under Reg 101.

    There are two ways that a person other than the claimant can cause an overpayment: by [b:fec6ba84b8]misrepresenting[/b:fec6ba84b8] the facts o.b.o. the claimant, and by [b:fec6ba84b8]failing to disclose [/b:fec6ba84b8]a fact o.b.o. the claimant.

    Failure to disclose only applies where a person has a duty to disclose facts in the first place. In a case where HB is paid to the claimant, the landlord is not under that duty.

    Misrepresentation can be committed by someone who is not a formal stakeholder under the HB Regs, for example a partner or, as in this case, non-HB-receiving landlord. But you would have to show that the landlord actively misrepresented the facts on behalf of the claimant. That might be done by, for example, furnishing a sham agreement that he knew would be used to support the HB claim.

    Finally, it is almost certain that the claimant is at least equally responsible for causing the overpayment, and the proper decision may well be that it is recoverable equally from both the claimant and the landlord as both are equally caught the relevant bit of Reg 101(2) (which I think was still subpara (a) at the time of your decision). If both landlord and claimant were not informed in those terms at the time, the time limit for bringing an appeal has not started yet because the notification is incomplete.


    Why would the landlord issue a false tenancy agreement or sign a false rent declaration when he does not stand to receive any rent from the claimants and is not going to be receiving the HB…?


    Its all a bit shambolic!

    We sent a VO out who was refused entry, this is what led us to revise. However I agree that in the absence of any overwhelming evidence which demonstrates that the LL misrepresented a fact, we will be laughed out of the Tribunal!

    We did issue a letter advising OP recovery was sought from the LL, so think we are OK there. So it could just be struck out……Ummmmm thats my only hope!


    [quote:1dd5b85d58]We sent a VO out who was refused entry, this is what led us to revise.[/quote:1dd5b85d58]

    I don’t see how that can lead to a retrospective decision that there is no liability to pay rent.

    You shouldn’t be using the appeal time limit as a loophole to justify erroneous decisions. At the very least you need to revise the decision regarding recovery targets, but it seems likely you’ll need to look at the whole thing again.


    “We did issue a letter advising OP recovery was sought from the LL,….”

    Issuing a letter to the landlord saying that recovery is sought from him is NOT sufficient. The same notice must be issued to all parties from whom the overpayment is determined to be recoverable. [R(H)6/06]. The notice must list everyone from whom the overpayment is held to be recoverable and addressed to all those parties

    It seems to me that you have not compleid with R(H)6/06, and so there is no overpayment that to date can be recovered from anyone. The clock in relation to the time limits for appeal has not yet started to run because the proper decisions have not been made and notified


    As I expect that you will have deduced from the responses so far, it looks from your postings that;

    1) You have not issued the correct decision notice so there is currently no recoverable overpayment anyway, and when corrected will in effect re-start the landlords timetable for appealing.
    2) Even if the decision notice were correctly issued, the landlord could just request a SOR and re-start his appeal rights so you canโ€™t rely on him being out of time.
    3) A decision that the tenancy was a sham based solely on the refusal to allow entry would be overturned on appeal.
    4) The case would really cast your LA in a bad light and might well attract criticism from the Tribunal Service.

    It looks to me that the decision that there is an overpayment recoverable from the landlord is clearly an error in law and subject to an anytime revision. I suggest you revise your decision on that basis.

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