Recoverable o/payment or official error (long post)

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    I have an appeal and the scenario is this:

    Our claimant, was awarded benefit based on long term Incap Benefit (also was in receipt of higher rate of DLA mobility) since 15.05.06

    Our fraud department find out via NFI that the claimant had been a F/T student since September 2007 and been in receipt of grant and student loan.

    The authority recalculated the HB entitlement and notified the claimant of the overpayment.

    This has been appealed by the claimant, and the claimant’s rep’s and they concede that their client failed to in their duty notify the designated office as per reg 88 of the HB Regs 2006, however, their argument is that there has been an official error, as the claimant claimed student grant/loan from the same LA as administering the HB [although there is no internal procedure for the Education Department for advising HB/CTB of claims made for student loan/grants] and they consider that there was reasonable expectation that the information would be passed on to the benefit service (I believe the reason they consider this is because reg 100(3) defines an overpayment which arose in consequence of an official error, means caused by a mistake whether in the form of an act or omission by (a) the LA (B) an officer or person acting for that LA.

    In support of their argument they have cited R(H) 10/08, PG v SSWP [2009] UKUT 77 (AAC) and CIS/1887/02 ( the last two are re failure to disclose under S.71 of SSAA 1992, which I hope I am right in thinking is not applicable to HB, which comes under S.75 of the SSAA 1992).

    I do not consider that an official error has occurred as the last review form completed by the claimant before his change, stated in the declaration that he signed, that he knew that he must let the Benefits Service know in writing about any changes which might affect his claim. Also the form gave the postal address to return the form, and the address to deliver the form in person.

    Also on the decision letters that were sent to the claimant through the period advised the claimant to send all letters to the postal address (which was the same as on the review form) and also instructed the claimant to read all the notes on the reverse of his decision letter, as these summarised his rights and duties.


    The next heading is: Change of Circumstance

    This begins by stating “Each claimant must tell the Council’s Benefit Office in writing of any changes of circumstances that might affect their Housing or Council Tax Benefit entitlement”. It goes on and gives some common examples then continues “These are some common examples, but there may be other changes that affect your benefit. Please advise me at once if any of your circumstances change…”

    Although the claimant is advised to inform “me”, I consider this substantiated by the fact that the claimant is advised at the start to contact the Council’s Benefit Office in writing, so therefore the “me” is to be contacted there, and as the front of the decision letter states that all letters to the benefit’s office postal address.

    Also I consider that the onus to provide evidence and information as given under 86(1) of the HB Regs 2006 is on a person who makes a claim, or a person to whom housing benefit has been awarded and couples with reg 88 of the 2006 regulations and does not mention the administering LA.

    I would rely upon the House of Lords case of Hinchy, and Commissioner Decisions CH/672/2003 and CH/1176/2003. I have also referred the Tribunal to R(JSA) 4/04, as the claimant (before having a rep) forwarded the argument that student loan was not an income.

    I would welcome your comments as to whether you consider this a recoverable overpayment or not and how the case law cited by their rep comes into play.



    I think that the ruling of the House of Lords in Hinchy v Secretary of State for Work and Pensions has little or no application to housing benefit because the House ruled on the facts in Hinchy that it was unrealistic to presume that the Secretary of State as a corporate person responsible for paying income support would have known of the fact that he had terminated Mrs Hinchy’s award of DLA, given that he needed many officials in many different offices in different parts of the country to oversee a number of social security benefits. Housing Benefit on the other hand is administered by a single local authority and whilst it may not be reasonable to suppose that communicating a details of a change of circumstances to a refuse collector employed by an authority would amount to disclosure, it is of an altogether different order if that change were communicated to a council tax collection officer, or an officer such as an offier of the homeless persons unit, simply because those officials are of necessity also intimately involved with housing benefit.

    CIS/1887/2002 is a post Hinchy case and supports the argument I set out above.

    A student loan is deemed to be income by the regs so I dont think you need rely on R(JSA)4/04 unless the loan was not properly payable in the first place.

    One decision you can rely on to support your argument is CH/1221/2009, where Judge Lane points out that the proper analysis of causation is that set out by the Court of Appeal in Sier.

    Ch/1221/2009 is almost on all fours with the case here


    Judge Mesher addressed this issue at an HBINFO Conference. He made a number of specific points:

    It has to be clear who the claimant has to contact. “The Council” or the Benefits Office is not sufficient. The contact details have to be detailed and clear.

    It depends what is said by whom and to whom. If the claimant contacts the education dept. and THEY say something like “we will advise the benefits service of your change in circs” then that may be an official error

    Thirdly, LA’s cannot put expectations on claimants that are unreasonable or inappropriate. If the usual policy is to allow changes to be reported on the telephone or via the internet, then an LA cannot fall back on “official” wording. Custom and practice are as relevant as the small print.

    Kevin D

    What counts, in broad terms, is whether:

    – the department being notified is acting in a capacity related to benefits (R(H) 10/08; and/or
    – the clmt had a reasonable expectation that the information would be passed on.

    R(H) 10/08 was marginally criticised in a more recent decision, but the more recent decision is not reported – at least not yet. Until/unless the later decision is reported, R(H) 10/08 stands.


    Thank-you all for your comments, I’m sorry that I have only just replied, as I was out of the office yesterday afternoon.

    Once again, Thanks.

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