Overpayments and rent arrears

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    According to Shelter’s Guide to Housing Benefit and Council Tax Benefit, if council tenants have a clause in their contracts stating that any recovered overpayments of housing benefit can be recharged as “additional rent”, then this will be valid and possession proceedings could be brought for rent arrears. How does this fit with the GM which makes it very clear that this shouldnt ever happen? In practice do any councils put this term into their tenancy agreements?

    Also, CPAG say that reg 93(2) is ultra vires. Have their been any challenges to this regulation? Any help is much appreciated!


    There is another scenario that you haven’t considered.

    Benefits sections will often recover the overpayment weekly, by withholding an amount of HB from the claimants payments. This means that the tenant will have to up their payments to cover the amount of this clawback.
    These arrears are classed as genuine arrears and not overpayments of HB on a rent account.

    There is a CD which supports this argument, but off the top of my head…….. 😳
    P.S. No relation – I don’t think!!8)

    Kevin D

    1) Clauses in HRA tenancy agreements: I’m not a lawyer and my knowledge of relevant legislation is not sufficient. But, it strikes me as odd that such a term can be enforceable. Afterall, a benefit overpayment is not rent arrears (in HRA cases) – that is established law. The CPAG commentary to [b:bad7df459d]HBR 102[/b:bad7df459d] may be of interest (pages 468+ – 18th edition).

    2) [b:bad7df459d]HBR 93(2)[/b:bad7df459d]: To my knowledge, this has not yet been tested (surprisingly, in my opinion). But, as a point of detail, CPAG do not say it IS ultra-vires (they can’t – only a Commissioner, or Court can). Simply that it is strongly arguable.

    3) Recovery from on-going benefit (raised by Jon): The CD, I think, is [b:bad7df459d]R(H) 07/04 – CSHB/0615/2003 (para 12)[/b:bad7df459d]



    For what its worth at least one Deputy Commissioner I know of has voiced an opinion that the Regulation is ultra vires.

    I will not say here whether or not he writes the commentary to Findlay

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