Terms & Conditions

[Anonymous]

We have a case where a HB overpayment occurred prior to April 2006, because the claimant started work and never notified us. The landlord was receiving direct payments at the time.
The landlord is appealing against being caught for liability for the overpayment under Reg 101.
He states that he was aware of the tenant’s change in circumstances and sent us a fax about it at that time. He has provided an (alleged) copy of the faxed letter, plus proof that he faxed our offices on that day, although no proof that it was that particular letter that was faxed.
We have no record of ever receiving this fax at the time it was supposed to have been sent.
Is there an argument that he has satisfied Reg 101 (1)(b)? That is, has he fulfilled the requirement to notify us (even if we didn’t receive it?) Can we give him the benefit of the doubt? Or is the only thing that matters that we didn’t receive it and therefore he has no protection under any of Reg 101 (1)?
Is there any case law etc out there to clarify this? Any comments welcome please!

[Anonymous]

I think a Tribunal would be very likely to accept that the fax was sent, it said what he says it said, it was received at your end and you lost it, so:

– Reg 101(1)(b) & (d) are satisfied, and
– for good measure, the cause of the overpayment from that point on is official error.

There is still Reg 101(1)(c) to consider of course (claimant liable to prosecution, or deliberately chose not to inform you).

It may be that the landlord has been very fortunate to stumble across proof of a fax on an unrelated matter, but he is starting from a much stronger position than many appellants who have won in “your-word-against-theirs” appeals.

If the Tribunal gives it the old “credible witness” routine in a case like this, I can’t see you getting much sympathy from the Commissioners.

[peterdelamothe]

Dawn – I am a bit confused by this one. Would not the first issue for both landlord and tenant be that the OP was caused by an LA official error?

The landlords evidence is that he notified you – his proof is presumably a fax copy showing that the fax was sent to a number at the Town Hall and the transfer was completed. I presume you can find no trace of what was sent but you accept something was sent?

Is a fax sufficient to meet reg 88? It is in writing. There must be some caselaw on this (hopefully Kevin D will be along soon!). To put it another way though – if someone sent a recorded delivery letter that was signed for but could not be found, what then? A fax confirmation is not as strong evidence but a Tribunal is going to find it hard to ignore.

[Anonymous]

I think the landlord’s best option is Reg 101(1), because this fully exempts him from recovery come what may.

Official error is a fallback position because:

(1) – the consensus seems to be that the last amendment to Reg 101 is not retrospective
(2) – under the old Reg 101, a recoverable overpayment is always recoverable from the person who received it
(3) – an official error overpayment made to a landlord is recoverable if either the landlord or claimant should have known

– so there is a risk with the official error option that the overpayment would still be recoverable from the landlord.

Presumably you had already gone through that thought process Dawn? That’s why you only mention Reg 101(1)?

[Anonymous]

Thanks for your answers Peter & Peter!
I am dealing with the appeal on this one.
I hadn’t considered official error yet, because I wasn’t sure whether we could accept that he had notified us or not.
I agree that it would be sensible for us to accept that the letter was sent. On that basis, at least some of the overpayment was caused by official error. I take it then that in the first instance the landlord could still be liable for the overpayment, including the official error bit, because he must have known he was being overpaid.
Turning then to Reg 101, the landlord satisfies (a), (b) and (d). But possibly not (c) because there was a failure to report a change in circs by the claimant (although how can you prove “deliberate” failure?).
Also, if the circs of the case mean that the landlord fails (c) does that take away all the protection offered by Reg 101 (1)? Am I thinking along the right lines generally and looking at the regs in the right order?

[Anonymous]

I think you are right – all the subparagraphs of Reg 101(1) must be satisfied if a landlord is to be protected by it. I say that because the last two subparagraphs are separated by the word “and” which clearly makes the whole list cumulative rather than a list of alternatives.

So (c) is the problem: the landlord is only protected if someone else (normally the claimant) has deliberately failed to disclose and/or would be liable to prosecution under s111A or 112(1). These are offences of dishonesty – laziness or negligence are not covered.

The landlord has therefore got to persuade the Tribunal (or you) that the claimant deliberately failed to report starting work.

[Anonymous]

Thank you for the guidance – much appreciated.

[peterdelamothe]

My post crossed with PB’s but I suspected that you were thinking of trying to recover from the tenant – which is where the official error comes in.

Peter’s view that “the landlord is only protected if someone else (normally the claimant) has deliberately failed to disclose and/or would be liable to prosecution under s111A or 112(1). These are offences of dishonesty – laziness or negligence are not covered” is somewhat controversial though and surely limits the protection offered to landlords significantly?

Care to comment Stainsby (or others?).

[Anonymous]

I make those comments in the very limited context of Reg 101(1) as it applies to pre-April 2006 overpayments.

From April 2006 onwards my view is that landlords should not need to rely on Reg 101(1) at all any more because in all cases where an overpayment is someone else’s fault, it is recoverablke from that other person instead of the landlord.

Hope that clarifies!

[Anonymous]

There are two questions here. (notwithstanding the validity of of the recoverability decision following R(H)6/06 ) One is whether or nto the LA were notified (implying that the overpayment may be official error)

The other is that assuming the overpayment is caused by an official error is it recoverable. The second quetion depends on whether or not any relvant indiviadual can be shown to be resonably expected to fully understand that there was at least some benefit overpaid.

The landord has produced some evidence that the fax was sent and a copy of it. A Tribunal may well accept that evidence. The LA on the other hand merely asserts that it has no record of the fax.

Unless it can produce a copy of some other fax that the landord sent on the day, the balance does look to be in the landords favour, although I would not think that Reg 101(1)(b) is satified given that the LA dont think there is neough evidence to bring proceedings against the claimant for what I will loosely call fraud.

The landlord is supported by the observations of Mr Commissioner Jacobs in CH/4065/2001

“10. The tribunal was in a position familiar to tribunals from their social security overpayment jurisdiction. The claimant alleged that a call had been made, but could not produce any corroborating evidence. The local authority denied that there was a record of the call.

11. There was no necessary conflict between the evidence of the claimant and that of the local authority. The evidence could be reconciled if the claimant had made the call, but it had not been recorded.

12. In response to questions posed in my direction at page 52, the local authority replied:
‘It is standard procedure for the authority’s Customer Services officer to record all telephone calls received, regardless of whether any action is needed or not. The authority is not aware of any instances where the procedure has not been carried out correctly.’

13. I do not doubt that the local authority’s standard procedure is as it describes. I also accept that it may not be aware of any instances of non-compliance. However, that leaves open the question of the evidence on which non-compliance could be shown to the satisfaction of the local authority. It is not my experience of life that administrative systems work perfectly in every case.

14. In replying to the same question, the claimant’s representative referred to an automatic system that logs all calls to the relevant section, but said that it was not in place at the time. I do not know if the local authority’s reply was referring to that system or to the previous
manual system. As far as I can tell from the chairman’s record of proceedings, this point was not dealt with at the hearing. It will have to be investigated at the rehearing.

15. So, the issue turned on the credibility of the claimant’s evidence. The lack of a record of the call by the local authority was a relevant factor in assessing that credibility, but that evidence itself had to be assessed taking into account the possibility of a mistake in the operation of the local authority’s system.”

The Commissioner went on to say at paras 21.2 and 21.3

21.2. What it has to do is to assess the probative worth of the evidence of the claimant and of the local authority.

21.3. Corroboration obviously adds to the probative value of the evidence. But corroboration is not essential.”

R(H)6/06 does take away appeal rights on the question of the choice of from whom to recover, and it does seem that if the overpayment was not caused by official error it is recoverable from both the claimant and the landlord.

If the recoverabilty decision is defective,the case will be remitted to the LA for a new decision and it can be argued that the 2006 Regs will then apply ( notwithstanding any Plewa arguments)

[Anonymous]

thank you for the comments

[Author]

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