Terms & Conditions

[andrew_hodkinson]

Please help. I have a case involving an OP for £5k for the period 05.03.01 to the 15.02.02 recoverable from the claiamnt. We have been unable to locate the claimant but recently his partner (who was living with the claimant throughout the OP period in question) has moved into our area and is claiming HB.

Am I correct in stating that under Reg 75(3)(b) SSA and Reg 101(2)(b)(ii) of HBR, we could recover the OP from the partner?

If so, would I also be correct in writing to her informing her of this and would she then have the right to appeal?

I am doubting myself now!

[seanosul]

You can but not from ongoing benefit entitlement. A decision notice is probably required as well.

[andrew_hodkinson]

Thank you for that

[Anonymous]

The period of the overpayment is interesting. It spans a change in the law in October 2001 when a partner became a porescribed person from whom an overpayment is recoveranle for the first time. Before that, recovery from the partner’s HB was merely a method of recovering from the claimant and the partner himself/herself was not the target under s75(3) and Reg 101 as they stood at that time.

Paul Stagg has very strong views in this context about the common-law presumption against retrospectivity, backed up since 1978 by s16 of the Interpretation Act. You need to look carefully at the period over which the overpayment was made and how it was caused. It may be that only the post-October 2001 portion is recoverable from the partner, if that. Paul argues that Reg 101 from October 2001 was not retrospective.

I believe HBINFO is shortly going to add the Plewa v the Chief Adjudication Officer case to the case law area of the site. This case deals with the issue of retrospectivity at the time when new recovery powers were introduced in the Social Security Act 1986 for other state benefits. There may be lessons in that case for comparable changes in HB overpayment recovery regs.

[seanosul]

Would that not depend on when the overpayment was created and not the period of the overpayment? Although the period straddles the change in law the end date does not, I would therefore assume that overpayment was raised after the law was changed.

Had the overpayment been raised in September 2001 the issue would have been different.

[Anonymous]

That’s what I would have said until I heard Paul Stagg’s analysis. He believes that overpayments need to be broken down into parts falling before and after the date when the law changed – even though the overpayment is not actually discovered until after.

[Mark]

Any idea whether Paul Stagg is applying the same logic to the changes to Reg 101 from April 06? In other words – if an overpayment ran from Jan 06 to June 06 is he saying that the Jan to April bit could be recoverable from the partner in all circumstances under the old 101(2)(b)?

If so, is he also saying that the April to June bit is only recoverable from the partner under the new 101(2)(b)(ii) only if none of 101(2)(a) applies or if the partner was a person who misrepresented and therefore becomes a recovery target under 101(2)(a)(i)?

Hope that question makes sense.

[Anonymous]

He is indeed saying that, although he is less convinced about the more recent change.

October 2001 made two very clear changes: for the first time, it provided for an overpayment not to be recoverable from the person who received it, albeit in the verty limited circumstances of Reg 101(1); and it also put the partner in the frame for the first time ever.

The April 2006 changes are more in the way of rearranging the circumstances in which all the people potentially liable for repayment before April 06 are or are not liable thereafter. No-one is in or out of the frame for the first time, but landlords seem to be in a better position and claimants in a worse position. So Paul Stagg concludes that the new version is probably not retrospective either.

Now comes the tawdry commercial plug – as you may have noticed, HBINFO very kindly invited me to co-present the Overpayments training sessions with Paul Stagg and that’s how I found out about his views on retrospectivity. If you visit the training thread on here, you can find out about places still available on future days and I believe that HBINFO is also offering the notes for sale to those who cannot get a place on the course. End of tawdry commercial plug.

[j parkin]

I have a similar case that I’m not entirely sure about recovery on.

Tribunal Service found that an overpayment was recoverable from both claimant (Mr) and partner (Mrs), however they are separated and both are now resident out of our area. It would seem fair in this case to recover from both as they were clearly accomplices in the case. Recovery from claimants DWP benefits has been arranged, but I cannot recover from her HB, nor according to DWP guidance from her DWP benefits, Am I to assume that the only way I can pursue her therefore is to invoice her and if that fails go down the line of legal action or DCA?

[Author]

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