Overpayment recovery from landlord

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    Just looking at someone’s appeal submission, and one question has come to mind:

    [i:27da737cbe]In the case of landlord recovery, if the overpayment is not caused by official error, does ‘reasonably expected to realise come in to it’? [/i:27da737cbe]

    In this case, the claimant lived in the same property as the landlord. The tenant left, and the landlord was overpaid for 15 months.

    The landlord claims they did not know the tenant had left, as he spends most of his time at his girlfriend’s place, so he didn’t realise the claimant had left.

    The overpayment is not official error.

    In the submission, they have argued that, even if the landlord did not know his tenant had gone, they could still reasonably have been [b:27da737cbe]expected[/b:27da737cbe] to realise they were being overpaid.

    Looking at reg 101(2), I am thinking this isn’t the point they should be arguing, but instead that it is recoverable because the landlord failed to disclose a material fact (under paragraph b). The issue of ‘reasonably expected to realise’ (under paragraph c) is not an issue, as it only applies if the overpayment is official error.

    Have I got this right?

    If I have, is my point only an academic one? If the landlord could have reasonably been expected to realise the tenant had gone then he should have told us anyway, so it kind of proves he failed to declare a material fact.

    Or am I just thinking about this too much….?


    I would say you have that exactly right.

    You probably don’t need me to remind you that the claimant himself appears to be equally guilty of failing to disclose the same fact, which makes the overpayment recoverable from both of them and carries all the attendant requirements about notifiying the deciison and involving both parties in the appeal.


    You are barking up the wrong tree here, because if there is no official error on the part of the council, the question then arises as to whether or not the overpayment arose in consequence of a mirepresentation or failure to disclose a change in the claimants circumstances.

    It appears that neither the claimant or the landlord did disclose the change, but that is not to say that both parties failed to disclose that change.

    There can be no duty, (and hence no failure to) disclose something that is not known. See CIS/4348/2003 para 13(ii)] (upheld by Court of Appeal as B v SOS) also Sharples v Chief Adjudication Officer [reported as R(IS)7/94] , Franklin v Chief Adjudication Officer [reported as R(IS)16/96]

    You may be able to argue that the landlord had constructive knowledge of the fact that his tenant had moved out, but you will have a very high hurdle indeed to jump.

    The scope for finding that a claimant had constructive knowledge of a change has been considered by a number of Commissioners and it is generally acknowledged that the threshold is high before a determination of constructive knowledge can be made. Some of the most comprehensive guidance as to the circumstances, which will put a person on notice of enquiry, or the standard of enquiries a person is expected to make can be found in CF/14643/1996. Mr Deputy Commissioner Jacobs as he then was wrote at para 29:

    “29. The further one moves from actual knowledge of a material fact the stronger the justification necessary to found a recoverability decision. This is not an area of law where general statements of law in Commissioners’ decisions should be isolated from the facts of the cases in which they appear. The circumstances in which a person is to be fixed with this type of knowledge should be found by progress from precedent to precedent rather than by the statement and application of a broad principle. Like the cases considered above, the case before me is on the borders of wilful blindness and means of knowledge. This is not a case in which any redrawing of the boundaries of this type of knowledge is appropriate. I conclude that, on the present state of the authorities, the law is as follows.
    (a) There must be something to put a person on notice that enquiries should be made before a person is fixed with knowledge of this type.
    (b) A person will be on notice that enquiries should be undertaken only where
    (i) there is a risk that there are specific facts to be discovered and (ii) the person is either aware of that risk or the facts and circumstances of the case, as known to that person, are such that the risk was plain to any sensible person.
    (c) The enquiries which a person is expected to make must be clear and obvious and be capable of being easily undertaken.
    (d) Within the limits set by the above propositions, it is a question of fact whether or not a person is to be fixed with this type of knowledge.”

    The flavour of the cases considered by Commissioners that were on the border of constructive knowledge includes CF/14643/1996 cited above. That case concerned a father whose son had stopped attending school almost a year before the decision to end child benefit entitlement.

    A similar case was that considered by Mr Deputy Commissioner Paines QC in CF/699/2005 on 8 July 2005 where a girl this time had stopped attending school a year before the decision to end child benefit entitlement.

    In CG/160/1999 Mr Commissioner Rowland allowed an appeal from an Invalid Care Allowance claimant who had not disclosed the fact that the person receiving care was no longer entitled to middle rate DLA. The Commissioner wrote at para 15:

    “15. In considering what could reasonably be expected of the claimant, the tribunal may wish to consider whether the Invalid Care Allowance Unit made any inquiries of the Disability Living Allowance Unit during the relevant period in order themselves to check on the claimant’s mother’s entitlement to disability living allowance. If the Invalid Care Allowance Unit did not make any such enquiries, that might be considered relevant to the question whether the claimant could reasonably have been expected to make enquiries of her mother, although if the tribunal conclude that the Invalid Care Allowance Unit acted unreasonably that might not assist her because fault on the part of the Department does not absolve a claimant (Duggan v. Chief Adjudication Officer, reported as an appendix to R(SB) 13/89).”

    It is clear from the cases I have cited that even where a claimant is intimately involved in another person’s affairs, the threshold may be too high to be reached to the extent that the claimant can be deemed to have constructive knowledge such that he can be held to have failed to disclose a change of circumstances to the relevant authority.

    That threshold is certainly not reached in the case of a landlord who is not in intimate contact with his tenant, and that tenant abandons the property without notifying him.


    Thank you both for your comments.

    Yes, we have also decided it is also recoverable from the claimant. The problem is, we have no idea where she is now, so enforcing recovery from her will be nigh on impossible.

    Stainsby – I am very impressed with you knowledge of non-HB caselaw, and the cases you have cited have given me much to think about.


    I think where the landlord lives with the tenant, the hurdle will not be too high to jump.

    But the nice thing about these cases is you can let the other two parties argue it out at tribunal, sit back and let the Judge decide (assuming you can locate the tenant).

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