recovery to be changed – appeal lost at tribunal service

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    The landlord was notified in March and April 2010 of an overpayment covering the period 27/10/2008 to 08/03/2010 due to his former tenant leaving the property . The tenant had not told the Authority of his vacation date – this came as a result of an ETD received from the DWP.The tenant had claimed HB in another borough from 27/10/2008. The landlord appealed in June 2010 and the case was submitted to the Tribunal Service in December 2010.The hearing was set for April 2011 but on the day it was adjourned by the judge as the Tribunal Service wanted to write to the former tenant to attend a new hearing and voice his comments.The appeal was finally heard in September 2011 – the former tenant did not contact the Tribunal Service or attend on the day.The Tribunal Service found in the landlord’s favour that the overpayment was not recoverable from him.

    My question is can the overpayment now be changed to be recovered from the former tenant at this late stage. Any comments appreciated.
    Thank You , Christine

    Kevin D

    There are two separate concepts here:

    1) whether the overpayment is recoverABLE from a target in the first instance;
    2) if recoverABLE from more than one target, the LA can choose from whom to see recoverY from?

    In this case, based on the info given, your original decision was, presumably, that the overpayment was recoverABLE from BOTH the claimant AND the landlord. However, the Tribunal has now found the overpayment is not recoverABLE from the landlord.

    That leaves open the issue of recoverY from the claimant, not about whether it is recoverABLE. Unless your LA has expressly told the claimant recoverY will not be sought from the claimant (and done so without qualification), there is nothing to prevent the LA seeking recovery from the claimant. But, if you have told the claimant you won’t recover from him (distinguished from a decision about recoverability), the clmt may well be able to resist recovery by way of estoppel.

    This situation demonstrates perfectly the importance of getting the wording right in letters relating to overpayments and distinguishing between an overpayment being recoverABLE (and from whom) and the separate issue of who it may or may not be the subject of recoverY.

    NB: If at the outset you didn’t notify the clmt that the overpayment was recoverABLE from both himself and the landlord, there is no legal basis on which to pursue recovery. You will have to renotify the claimant that the o/p is recoverABLE from him alone (because of the FtT decision). However, that doesn’t prevent the potential estoppel argument on recoverY.


    Has this decision been ‘published’ yet and if so is there a reference number or link via which it can be accessed?

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