Recovery action whilst waiting Statement of Reasons from TAS

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  • #39758
    Junep
    Participant

    Dear all

    Does anyone have an opinion as to whether I am wrong in not reversing a decision relating to recovered amounts of HB; after a decision was overturned at T.A.S. and the L/A was waiting for a statement of reasons.

    Basically prior to the appeal hearing process the L/A started recovery of a HB overpayment, which was then subsequently suspended during the ‘appeal’ process and waiting for the Tribunal hearing date. The case was heard and found in favour of the appellant. The L/A then requested a S.O.R. immediately after receiving the decision and the only delay has been in its receipt from the T.A.S. in Birmingham.

    Because the appellant was represented by her new landlord at the appeal and recovery in respect of the overpayment was from her ongoing entitlement to HB; they believe that the recovered amount should be reinstated even though I was still waiting for the S.O.R.

    I think I just want to be clear what everyone else does in this situation, as I thought I was complying with legislation but as always I could be wrong.

    Many thanks for reading and responding.
    Kind regards
    June
    🙂

    #113284
    d-stainsby
    Participant

    First of all, the Tribunals decision is final, so there are no grounds for you to recover as there is no recoverable overpayment.

    The appeal may not have finally detereined however, that only occurrs once the appeal can be taken no further [R(SB)5/91, CIS/2654/1999], but that does not help you because it was held in R(SB)5/91 that there can be no recovery until adjudication is complete.

    In CH/1757/2009 Judge Williams issued a Direction agains Bromley council and their bailiffs ordering them to suspend all action in the case that was before him. The appellant could ask for a similar Direction from the first tier tribunal in the present case, or could sue in the county court for the return of the recovered amounts.

    Neither paragraph 13 of Sch 7 of the Child Support Pensions and Social Security Act 2000, nor Regulation 11 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations contain any provision that enables you to hold onto any recovered amount that a tribunal has held to be not recoverable.

    #113286
    Junep
    Participant

    Thank you Stainsby for your response, I will read each quoted piece of case law very carefully before making a procedural decision.

    Again, your response always appreciated.

    Kind regards
    June
    🙂

    #113311
    peterdelamothe
    Keymaster

    I agree fully with Stainsby. There is no debt to recover and the decision as it stands as of today confirms that. All the LA has done is to ask for an explanation why the Tribunal reached that decision. You can only appeal if there has been an error of law not because you don’t like that decision. So holding on to monies seems morally wrong (putting aside the caselaw S has mentioned) – the Tribunal has said “you got it wrong – this is what you should have decided”. Putting the claimant into rent arrears is a bit harsh unless there is a real belief that the Tribunal has completely misunderstood and / or used the wrong regs etc. (as did occur in the decision posted on hbinfo today).

    #113317
    Junep
    Participant

    Thanks Peter for your response; having discussed this matter with my line manager, it has been decided that any recovery of an overpayment will be dealt with appropriately regardless of whether we are waiting for a Statement of Reasons from the TAS or considering a further appeal thereafter.

    Thanks to both you and Stainsby for your advice.

    Kind regards
    June 🙂

    #113323
    Kevin D
    Participant

    If by “appropriately” you mean recovery action will continue, that would be unlawful. As has already been stated, until / unless the FtTD is overturned, the LA’s decision no longer has any effect.

    However, I would disagree with Stainsby and Peter in one respect. If the LA is GENUINELY considering taking the matter to the UT, I don’t think any recovered o/p has to be refunded at this time – but the LA mustn’t use the SoR / UT appeal process as a vehicle for abusing the situation.

    In [b]R(oao Hall) v Chichester DC [2007] EWHC Admin 168[/b], the court found that the LA was not required to pay benefit pending the outcome of an appeal to the UT (Cmmrs as was). However, that case is potentially distinguishable because the appellant was unsuccessful at the then equivalent FtT stage.

    If the case was on my desk, I’d hold off repaying the recovered HB/CTB if it was intended to proceed to UT. If the time limit ran out for making such an appeal, my view would be the LA must, at that point, repay the monies. Assuming an appeal was to be made to the UT, the legal basis for witholding repayment would be that judicial/adjudication process had NOT reached finality. But I can’t see any basis for recovering FURTHER monies from the clmt until/unless the UT overturns the FtT decision.

    #113326
    Junep
    Participant

    Definitely food for thought.

    By ‘appropriately’ I meant that the view would be taken to ‘refunding’ recovered amounts of the overpayment and a subsequent consideration of writing off the ‘total’ overpayment; I apologise for not clarifying.

    I am at the moment reading the SOR. However, I would never request a SOR with the view to ‘delaying’ the process unless I believed that an error in law may have occurred. Quite frankly, it would be a waste of my time and that of all parties concerned if I did. However, I do appreciate your comments and I think I will suggest to my line manager that we assess each case on its merits as to what action we take given the amount of the overpayment under consideration at appeal.

    Again, kind regards and thanks for comments.
    June
    🙂

    #113334
    Anonymous
    Guest

    I agree with Kevin’s comments about the effect of case law concerning a pending appeal from the First-tier Tribunal.

    In CH/1757/2009, Judge Williams did not direct the Council to hold off taking recovery action pending the claimant’s further appeal, because he can’t do that. What he said was that the effect of the FtT’s decision should be suspended pending the further appeal, and he went on to say that in his view it would then be wrong in principle for the Council to recover anything … but he couldn’t stop them. By suspending the effect of the FtT’s decision, he rolled the case back to [i]status quo ante[/i] … which was that the Council had made a first-instance overpayment decision which was under appeal.

    You could argue that as long as a decision is under appeal it isn’t really operative at all and so the Council cannot do anything. That’s fine if you are talking about an overpayment, but the argument doesn’t work so well where the decision under appeal is an award of benefit going forward. If the claimant appeals against that, and the FtT confirms the decision, then the claimant seeks permission to appeal further, what would be the effect of suspending the effect of the Tribunal’s decision? Nothing – because the operative decision would still be the Council’s original decision until a Tribunal at any level said different. That was highlighted by the Chichester case that Kevin mentions.

    I am not sure Judge Williams really thought it through to its logical conclusion. Halting recovery action, and certainly refundiong money already recovered, are legally problematic I think.

    That is not to say that I advocate recovering overpayments with an appeal pending – In think it is bad practice and the Ombudsman consistently takes the same view. But I am not convinced that in circumstances like CH/1757/2009 the effect of suspending the Tribunal’s decision is to somehow make it so that the claimant has temporarily won.

    #113341
    d-stainsby
    Participant

    There is a specific power given to LA’s to suspend an award pending an appeal, but that power does not extend to allowing recovery of overpayments

    #113344
    Anonymous
    Guest

    But there is nothing to suspend where the appeal has been rejected. That was the issue in the Chichester case. The LA awarded amount A, the claimant thought it should be amount B, the Tribunal rejected the appeal confirming amount A, and the claimant sought permission to appeal further. In the meantime he wanted the Council to pay amount B but it could not do so because the operative decision was A,.

    In CH/1757/2009, the Council made decision A – there is an overpayment/excess CTB; the claimant appealed and the Tribunal rejected the appeal, confirming decision A. The claimant appelaed further and Judge Williams directed the effect of the Tribunal confirming Decision A to be suspended. But all that does is leave us with the Council’s original decision A – there has been an overpayment. It’s bad practice to recover it with a UT appeal pending, but I don’t see how the Council can be prevented from doing so.

    #113461
    d-stainsby
    Participant

    I have just read Hall and I think it actually supports the claimants case here because the extant decision in the present case is that of the first tier tribunal and that decision is that there is no overpayment that is recoverable from the claimant. There was indeed nothing to suespned in Hall, and the Court correctly held that it effecitvely had no jurisdiction. That jurisdiction was with the Commissioner.

    The LA may suspend an award that was otherwise payable following the decision of a first tier tribunal. Regulation 11(1)(2)(c)(i) and (3) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations provide:

    “Cases where a relevant authority may suspend
    11.—(1) A relevant authority may suspend, in whole or in part–
    (a) any payment of housing benefit or council tax benefit;
    (b) any reduction (by way of council tax benefit) in the amount that a person is or will become liable to pay in respect of council tax, in the circumstances prescribed in paragraph (2)

    ……
    (2)
    (c) an issue arises whether–
    (i) an amount of housing benefit is recoverable under section 75 (overpayments) of the Administration Act or regulation made under that section;

    (3) For the purposes of paragraph 13(3)(c) of Schedule 7 to the Act the prescribed circumstances are that a decision of an appeal tribunal, a Commissioner or a court has been made and the relevant authority–
    (a) is waiting to receive that decision, or in the case of an appeal tribunal decision, is considering whether to apply for a statement of reasons for it, or has applied for such a statement and is waiting to receive it; or
    (b) has received that decision or, in the case of an appeal tribunal decision, the statement of reasons for it, and is considering whether to apply for leave to appeal, or where leave to appeal has been granted, is considering whether to appeal, and the relevant authority shall as soon as reasonably practicable give written notice of its intention to apply for a statement of the reasons for a tribunal decision, to apply for leave to appeal, or to appeal.!”

    Regulation 11 provides the power to suspend payment of benefit, but does not provide any power for the LA to keep hold of recovered amounts of benefit that the tribunal has held to be not recoverable.

    It is indeed arguable that the LA has no power to recover any overpayment until the appeal process has been exhausted. Mr Commisioner Rice summed up the position at paragraph 6 of R(SB)5/91

    “The same question which came before the tribunal appears to have been ventilated in an earlier case CSB/1158/1982, where at paragraph 9 the learned Commissioner stated as follows:
    “9 . . . . in my judgment the Limitation Act has no relevance. Recovery under section 20 (which is for the Secretary of State alone) only arises once the adjudicating authorities have determined there is a recoverable amount and have determined what it is. That is the sole jurisdiction of the adjudicating authorities. They are not concerned with whether money can or should be recovered, see paragraph 4 of R(SB) 44/83.”
    The Commissioner then went on to point out that time began to run within section 9(1) only after the appellate procedure had been exhausted:
    “Accordingly until adjudication is complete the Secretary of State has no right to recover. It is only from then that the Limitation Act period will apply as only then does the Secretary of State’s right of action accrue. To accept that notification of the date of the adjudication officer’s decision as the relevant date will mean that the Secretary of State was entitled as of that moment to recover notwithstanding that there was an appeal in progress. It would not I think be the intention of Parliament to provide for appeals against an initial determination if such were the case . . .”

    #132317
    Ben Travers
    Participant

    so.. First Tier Tribunal for a backdate period covering a period of around 3 months. Paper Hearing decided in the appellant’s favour. That’s all we know.

    We’ve asked for a statement of reasons – we can’t quite fathom how or why anyone might think good cause was shown.

    In the meantime the claimant is in court on Monday for eviction proceedings – pay the backdate period?

    #132318
    d-stainsby
    Participant

    You could prevent an eviction by doing so (although you are legally free to suspend)

    If you pay but are eventually proved right and the ftt decision is overturned, there is no official error and the overpaid benefit is therefore recoverable in the usual way

    In other words its your call

    #132319
    Ben Travers
    Participant

    Thanks
    I think I’m more comfortable having to recover an overpayment following the FTT Tribunal decision being revised than I am allowing the claimant to be evicted so I’m going to pay.

    #132343
    Chris Robbins
    Participant

    In my experience a County Court would never issue a possession notice where the tenant disputes the debt on the grounds s(he) believes it should be covered by HB.
    In my authority we normally suspend court proceedings until the benefit dispute has been sorted (unless there are other unrelated arrears in issue).

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