Recoverable from whom – Which version of reg 101 to use?

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    Decision and payments made prior to 10 April at an award rate (A).

    This was revised after 10 April and the award was increased to rate (B).

    A further revision to reduced the award to rate (C), which is lower than rate (A), leading to the overpayment.

    My take on the regs is use the ones in force at the time the payment was made.

    I’m sure I’m missing something but just cannot get my head round which version to apply – does the OP arise from the payments made as a result of the original decision (A) or the revised decision (B)? 😕


    I would argue that your decision is based on the overpayment legislation at the time of your overpayment decision not at the time of the original decision.


    Yes Pete, Surely it is at time decision was made?

    Kevin D

    With the advantage of knowing the content of yesterday’s HBinfo’s seminar, there is a further argument. The argument is apparently supported by both Paul Stagg and Richard Poynter. Cmmr Jacobs also offered a view but, just to be clear, it should not be taken as being a definitive view, nor should it be given as any indication of what would necessarily happen if/when such a case appears before a Cmmr.

    So, disclaimer out of the way, it boils down to the “[b:b9499c04b9]Plewa[/b:b9499c04b9]” case that has suddenly appeared out of nowhere.

    In very simple terms, it is suggested that the legislation to be applied is that which was in force [b:b9499c04b9]at the time of the payments[/b:b9499c04b9]. Not at the time of entitlement; nor at the time of the decision(s).

    I haven’t yet sufficiently got to grips with the legal arguments as to why the current legislation may not appy, so I’m not expanding any further (at least not yet….).

    Peter Barker may well have some observations on this.


    “In very simple terms, it is suggested that the legislation to be applied is that which was in force at the time of the payments. Not at the time of entitlement; nor at the time of the decision(s). ”

    This would mean the same period of overpayment could have 2 sets of regs applied to it?


    😕 I originaly thought that it should be the regs in force at the time the decision was made.

    😕 I then amended my view to the time the (over)payment was made as in my original posting.

    😕 Then I came across the scenario set out in that posting – I can see no way of resolving it considering purely the date of the overpayment.

    Which leads me back to either the date of the OP dec which will, at least, give an answer to all possible scenarios or an absolutely horrendous method which I do not want to post until I’m certain that using the decision date is incorrect and the problem using the payment date cannot be resolved.

    Charles: Beat me to the post but yes (because that appears to be a result)…and no (because you cannot apply two regs to the same thing)… That appears to be the end result which does not make sense. Although there again, maybe it fits in well with the benefits scheme.


    I can see how things can start to seem over-elaborate if you go with date of payment. In this case, award A was an overpayment to the extent that it exceeded award C, and award B was an overpayment in respect of the same period to the extent that it further exceeded award A. So you could find yourself saying “you were overpaid £x between Day 1 and 10 April 2006; this is recoverable from you and your landlord (who is also being informed about it); not content with having overpaid you week-by-week up to April, I’m afraid we then paid you some arrears of benefit in May for the period from Day 1 to 10 April – this was clearly an overpayment too, but it’s only recoverable from you because it was your fault and the law does not allow us to recover it from your landlord if it was paid after 10 April”.

    In short, there are two overpayments [b:179d6908f9]for[/b:179d6908f9] the same period but made [b:179d6908f9]in[/b:179d6908f9] different Reg 101 eras.

    I can well understand how Councils might be reluctant to go to such forensic lengths in applying overpayment law. But after hearing from Commissioner Jacobs on Monday’s current issues session I am as sure as I can possibly be that the successive versions of Reg 101 do not operate retrospectively, and that the correct way to decide which version to apply is to look at the date on which the overpayment was made.

    Commissioner Jacobs was asked about a couplke of cross-10-April issues, namely:

    – where the overpayment is made after 10 April but covers a period falling at least partly before 10 April, and
    – where the overpayment is made after 10 April but the cause of the overpayment is an error or misrrepresentation made before 10 April

    His answer was very clear – in his view it is the date of payment that governs which version of Reg 101 should be applied.

    He was also asked about reviusing/remaking/repairing pre-April 10 decisions that have been shown to be faulty by CH/4234/2004 (or are discovered to be faulty after 10 April for some other reason). His view was that the repaired/remade/revised decision is the one that should have been made originally at the time, under the Regs in the form that applied at that time – this too is consistent with his view that the date of payment is the crucial determining factor, not the date of the overpayment decision.

    So we can predict with reasonable confidence that if this issue arises in a case before Commissioner Jacobs, he will say that Reg 101 is not retrospective.

    In your case, Pete, that actually makes things more complicated. Does my suggestion at the start of this post make sense?



    TVM! I knew I was missing something (I did not think in terms of multiple OPs for the same period) This will give a solution for all scanrios as well – now perfectly clear!

    Irritating but clear!


    The other interesting point he confirmed was that there could be a circumstance where an OP is recoverable from a third party – NOT the landlord, claimant and partner – and ONLY from that party.


    Without having heard the arguments from the learned Commissioners, I still think that the relvant Regs are the ones in force at the time the decison was made

    I dont think that a defective “decison”, not compliant with CH/4234/2004 can be repaired. This is in line with the decison of Mr Commissioner Mesher CH/3622/2005.

    In terms of revision and supersession, it seems that if Mr Commissioner Mesher followed the Tribunal of Commissioners decision R(IB)2/04 (and he is bound to) he is efectively saying that no valid decison has been made and so the effect is that a new decison has to be made.

    As I said in my earlier postings, Plewa was concerned with a situation where the new legislation took away certain defences, and the House of Lords held that it could not be retrospective in that rights that had accrued under the old legislation must be preserved.

    The 2006 Regs do not encroach on any accrued rights in my view, and since an overpayment can only be created by a valid revision or supersession, plus a valid outcome recoverability decision, then the Regs that apply must be those in force when the decision is made

    Kevin D

    In fairness to Cmmr Jacobs, he made it clear that his comments were not definitive, while nevertheless accepting that the Paul Stagg / Richard Poynter view was potentially persuasive. Cmmr Jacobs even acknowledged that he has changed his mind on this issue more than once! Er, and may do so again…. 🙂

    So, we just won’t know for sure until one of these reaches Cmmrs.


    This is an old thread I know, but it seems the DWP are most upset at the apparent consensus amongst councils that the April 2006 change to overpayment is not retrospective; they very much believe it is!

    They have consulted with their lawyers and issued a detailed argument as to why this is their position. It can be summarised as follows:

    1) The intention of the Secretary of State was always that it would be retrospective. Any decision made post April 10th 2006 must be made under the new rule as the old one no longer exists in the regulations.

    2) The central premise of the argument against retrospectivity is misguided, that the House of Lords “Plewa” judgement is a relevant precedent.

    3) This change is to [i:1c0939cf41]secondary legislation[/i:1c0939cf41] made by [i:1c0939cf41]statutory instrument[/i:1c0939cf41]. The “Plewa” case concerned [i:1c0939cf41]primary legislation [/i:1c0939cf41]by [i:1c0939cf41]act of parliament[/i:1c0939cf41]. Common Law presumptions about Parliament are therefore irrelevant.

    4) In “Plewa” the test for recovery changed. Here it has not.

    5) There is no change to substantive rights, only to procedures.

    6) The whole point of the “Plewa” judgement was to protect innocent third parties from potential recovery action. This is exactly what the new rule is trying to do, to protect “innocent third party” landlords from recovery where they were totally unaware of any possible overpayment – it is therefore in the spirit of “Plewa” for it to be retrospective!

    This is a fairly clunky summary, but it seems that the argument continues and there are some interesting points raised.

    Any thoughts anyone? I know a certain Mr P. Barker is unlikely to agree with the DWP’s assessment. 😉


    Anselmo – it would be interesting to see a copy of this detailed argument.

    The Plewa case was first mentioned by barrister Paul Stagg. Both he and Commissioner Jacobs made the point that DWP had the power to insert the start date for these regulations but failed to do so. After all, HB regs are rarely retrospective.

    The entire overpayment process has now changed so I am not sure I quite understand your points 4 and 5.

    I think the point of using the Plewa judgement is that it protects all “innocent” parties from retrospective decisions – not just the landlord.

    If this gets to the Commissioners and it is clear that one of the parties has lost out owing to the legislation being applied retrospectively, I think DWP will struggle.


    Just to be clear, I’m not even saying I understand points 4 and 5 – a barrister I am not! This is the DWP’s argument rather than mine.

    I have raised it here because it does raise some interesting points, in my opinion. Especially the potential difference between primary and secondary legislation. While that proves nothing in itself, and my knowledge of Admin Law is far too scant to say for sure, it does perhaps suggest that the Plewa case is not definitvely persuasive in this case.

    P.S. I have emailed you regarding sourcing the argument in full.



    If my memory serves me well, Paul Stagg’s view is that it makes no difference whether the change in the law came about through primary or secondary legislation. The Plewa principles would still apply. but on points 4 and 5, it seems that the DWP agree with what I said on an earlier thread in October 2006

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