Terms & Conditions

[Anonymous]

Morning all,

Has anyone come across this? On an intervention, an undeclared change in income was uncovered. The increase in income was small, a few pounds per week say, but it goes back a while. So entitlement is reassessed and an overpayment is raised, perhaps about 50 – 60 quid.

The claimant appeals. The chair upholds the appeal, quoting (what is now) HB reg 88 saying that the weekly increase was so small that the claimant couldn’t reasonably be expected to know that it would affect his entitlement!

I have never come across this before. It’s something that’s taken for granted; increase in income = change in benefit. Our appeals team swear it’s happened to them otherwise I wouldn’t believe it.

Is there any defence or any reference to what is reasonable? Reasonableness is subjective but the effect on entitlement is measurable. How much is reasonable? Where do you draw the line.

This is going to cause problems for our Assessment teams, particularly the Interventions team, as well as the Appeals guys.

Any ideas? Anyone?

Cheers,

Darren

[aosulliv]

The question of reasonableness only arises on cases where the overpayment is official error.

If there is no official error, you don’t have to seek to exlude the claimant from Reg 100(2).

Therefore the decision made by the Tribunal is wrong

[Anonymous]

I don’t think that the official error/claimant error question is what’s being addressed by the Tribunal, but the wording of what is now Reg 88(1) of the HBR 2006:

“…if at any time…during the award of housing benefit, there is a change of circumstances which the claimant…[b:ae3e02686c]might reasonably be expected to know[/b:ae3e02686c] might affect the claimant´s right to, the amount of or the receipt of housing benefit, that person shall be under a duty to notify that change of circumstances by giving notice in writing to the designated office”

So the Chair is saying they could not reasonably have known this was a relevant change because the amount was so small, so they had no duty to notify it. Nothing to do with ‘recoverability’ of an overpayment.

(Not saying they’re right, mind…)

[Anonymous]

But the significance of such a decision would be academic from the claimant’s point of view: whether the cause of the overpayment is failure to disclose or an unfortunate no-fault mishap, it still isn’t an official error so it’s recoverable either way.

The Tribunal seems to me to have been thinking of the rules on recoverability for other benefits, where there must be misrepresentation or failure to disclose. But if so, the Tribunal’s decision would still be wrong on its own terms because the case of “B” has established that what matters is the bare fact that the overpayment arose from non-disclosure: whether that non-disclosure was a reasonable oversight is a factor to be taken into account at the stage of enforcement. B had compelling grounds for a compassionate write-off, but her failure to disclose made the overpayment recoverable.

[jmembery]

The chair may be right that they had no duty to report the change in circumstances, but that is irrelevant. Once the change was identified (by whatever method) and the overpayment calculated, as long as OP was not caused by official error it is recoverable.

The only argument I can see would be that the change in income was not a material one so no supercession was needed.

[aosulliv]

If that argument is ever used with one of my cases, I always say ‘If in doubt tell us and we will let you know’ At the end of the day, a claimant is obliged to inform the L/A of changes in income.

Put the other way, if the income had decreased, the majority of claimant’s would be straight into the office

[Anonymous]

Yes, I agree that there [i:4a47852f4c]is[/i:4a47852f4c] an overpayment to be considered, but I admire the Chair’s efforts to say there [i:4a47852f4c]isn’t[/i:4a47852f4c]…!

It would have been nice if the Chair had been right, think of all those fiddly little overpayment appeals you could lapse.

[Anonymous]

I think the chair has proably applied the law as it relates to other social security benefits. It does happen sometimes and Commissioners have overturned such decisions.

The other question is whther or not the Council ought to have known in advance that the change was likely to occurr, for example a change from short term high rate to long term incapacity benefit. That change may increase or decrease a claimants HB.

If the change related to the claimants partners benefit, there may be cases where the claimant did not know of the change, or alternatively may not reasonably be expected to know the change was significant. The Council on the other hand ought to know of the change and should make enquireies from the outset. If the council does not make such enquiries, that failure could amount to an official error.

My argument above is going to be tested soon at an oral hearing in CH/687/2006

[Anonymous]

I like your thinking jmembury. Even if the if the claimant isn’t obliged to tell us, [i:166d59d6cb]he has done[/i:166d59d6cb], so there is no reason not to supercede.

I need to point out that my understanding of the matter is that it was an unearned income change (so we didn’t know it was going to happen) and recoverability was not the issue. The Chair was saying that the supercession should not have been done because the claimant was not obliged to declare the change in his circumstances; he could not have reasonably known it would affect his entitlement.

Personally, I think that this position is laughable. Everything that claimant sees states that they should declare any change in income as it may affect their benefit. They can’t say they weren’t warned. I would be happy to take the matter to the Commissioners, at the very least for a definitive ruling. But it’s not up to me……

Cheers,

Darren

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