RECOVERY FROM LANDLORD OR CLAIMANT?

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  • #22294
    Anonymous
    Guest

    Good morning, I have a small dilemma regarding the recovery of a HB overpayment.

    When the claim was assessed ineligible service charges were not included in the assessment. The claim was corrected and this created an overpayment. The decision was made to recover this from the landlord direct in the form of an invoice.

    The landlord is a registered social landlord and the HB was paid direct to them. This decision was made because it was felt that the landlord should have been aware of the services that were included in the charge and that they were not eligible for HB, and therefore they were receiving too much.

    They have now written in and basically threatened to evict the tenant if the money is recovered from them. I rang them in response to this letter as it was not an appeal, and they stated that all other LA’s would recover from the claimants ongoing ent and as we decide how much HB to pay it is nothing to do with them. I did not get very far during this conversation.

    I am going to write back to them, but having discussed this with the head of Revs and Bens we do not want to set a precedent by any decision we may now make.

    I have looked further into the claim and the claimant is on DLAM topped up by Income Support, unfortunately she used her first Benefit cheque (as she requested to receive the HB) to pay some debts as she had left her husband and she had nothing to live on, she is now repaying the rent arrears – but I do not know how much they are or the amount she is repaying.

    My feeling is that they have written this letter because she is in arrears, and have threatened to evict her so that we will change our decision. They have not evicted her so far and so can they really start possession proceedings and treat the HB overpayment as rent arrears?

    I want to do what is best for this tenant, and would appreciate any comments or viewpoints on this situation as I have got to write back to the landlord and justify our decision.

    #7462
    Accura
    Participant

    if the HB was paid to the claimant the RSL could not reasonably have been aware of any o/p. They wouldn’t have received any letters or schedules.

    I can’t see how you could target the HA for recovery. I would recover from ongoing benefit from the claimant and perhaps invite the claimant to complete and income/expenditure form to justify recovery at a lower rate say 5 quid a week.

    Or if you think that it would cause severe hardship and the tenancy would be at risk you could consider writing it off.

    Although it is a recoverable o/p.

    #7463
    Anonymous
    Guest

    Only the first cheque went to the claimant. All the other cheques went to the landlord otherwise we would not be recovering from the landlord.

    I have broached the write off possibility, but at the moment I have been asked to continue to try and recover.

    It is a La error overpayment, however it is considered recoverable at the moment.

    #7464
    Accura
    Participant

    in which case I would recover from ongoing benefit and consider the reduced rate option to keep everyone happy.

    Whilst in this case the LL should’ve been aware of the o/p (HB exceeding eligible liability) I would reduce entitlement on the basis that its in the claimants best interests to have a weekly deduction rather than a nasty letter from the LL 🙄

    #7465
    markp
    Participant

    I’m somewhat confused by the ineligible services. You state in the original post that they weren’t included in the claim so I don’t see why an OP has arisen. Did you mean that they were included and you then revised decision to take them out, hence the OP? If so then I understand.

    The HA should know what services are and aren’t eligible for HB and so the OP recovery target can be the landlord, apart from the payment you made to the tenant. If you do go for recovery from the claimant via ongoing deductions then you could never go for the LL at a later date.

    I have one further thought, a nasty one at that. The OP, you accept, is LA error. To recover it from the claimant would be, to my mind, risky as the claimant, on appeal, can demonstrate that they couldn’t be aware that they’d been overpaid and, more likely than not, win a tribunal. You would then have a completely non – recoverable overpayment to write off and I don’t think you could take that any further. The LL on the other hand could be deemed to be aware of the overpayment and so recovery of an overpayment, which is LA error, can be undertaken. The tribunal would then consider that, if they appealed the decision, and would be more inclined to consider the OP recoverable, although you can expect a bashing from the chair in the decision.

    My thought would be to split the OP between the payment made to tenant and landlord, write off the tenant’s part and try recovery from LL from the date payments started being made to them. That way you have revised the decision and new appeal rights will be given.

    The LL can take action against the tenant but I don’t know how the courts would view the debit of an HB OP on the account as arrears. To try to evict would be the decision they’d then have to make.

    Glad it’s not on my desk!!

    Do I know what I'm doing? The jury's out on that........................

    #7466
    Anonymous
    Guest

    Yes – you are right mark I meant that the services had not been taken into off the eligible rent.

    At the moment, and based on my discussion with the head of revs and bens the overpyament is not going to be recovered from ongoing benfit entitlement, howver I take your point regarding the splitting of the overpayment and that would be a fair decision.

    My main concern is the way the landlord has chosen to express their disagreement that the overpayment should be recovered from them, as they are more or less saying if we continue with recovery from them then the tenant will be made homelss.

    #7467
    Anonymous
    Guest

    I think we have to draw a line here in what we can and cannot achieve.
    If the tenant owes the landlord arrears of rent, then the landlord has the right to seek possession of the property.
    At no time can they evict the tenant without the courts deciding that this is the correct approach to take. 🙄
    So they are able to commence proceedings, but there is no guarantee that it will end up in the tenant loosing their home. The District Judge has the power to make an order, but, for example, to suspend it provided the person pays the current rent plus an agreed amount off the arrears weekly / monthly.
    Also, do not ever be “blackmailed” by landlords (social or any other kind) saying they will do this or that. They have to take responsibility for their actions, and if that’s what they want to do, nothing we can do will stop them. (Also see some of Kevin Ds postings re old reg 11 payments) – hope you don’t mind me using that as an example, Kevin. 😉

    So, make up your mind, who you are able to recover from, (in this case I see no problem in recovering from the landlord), do so, and then be prepared to justify your actions if need be. 8)
    P.S I can quite categorically state that all other LAs would not automatically recover from the tenant – we wouldn’t automatically recover from anyone, I hope, without looking at all the angles first!!

    #7468
    peterdelamothe
    Keymaster

    Hold on – lets look at it from the RSL point of view (putting aside the unfortunate “threats”). What exactly were the services and why do you think the landlord could reasonably have known they were being overpaid? The onus would be on u to demonstrate this at a tribunal. If the HB is MORE than the rental liability then fair enough. But its not going to be that easy otherwise.

    #7469
    jamcon
    Participant

    Caroline,

    You may want to look at Commissioner Mesher’s decision CH 4918 2003. Here, the Council did not deduct the heating charge from the gross rent. The Council acknowledged it was an official error overpayment, but was still recoverable from the landlord (an RSL) because the landlord could reasonably have been expected to realise it was being overpaid.

    Whether the landlord in this instance could reasonably have been expected to realise it was being overpaid is a matter of fact which you will have a better idea than the rest of us. It may not be as difficult to prove as Peterdelamoth suggests.

    #7470
    Anonymous
    Guest

    They were

    support costs
    general service charge
    heating and hot water
    general rates and water rates.

    total monthly charge £361.52 – actual rent £187.42. Hb paid just over £332.00 every four weeks.

    I will not be the one who has to take this case to tribunal if it goes that far – and am only really trying to resolve it at this stage as they haven’t officially appealed.

    #7471
    Anonymous
    Guest

    Thank you every one for your responses.

    I think I can move forward with this now. 🙂

    #7472
    Anselmo
    Participant

    Just a footnote, from the RSL perspective:

    Jon P suggests “At no time can they evict the tenant without the courts deciding that this is the correct approach to take”. – I wonder if this is strictly true.

    The RSL could feasibly apply for possession on Ground 8 (depending slightly on what type of tenancy it is). This is a [i:3e8c40db3b]mandatory[/i:3e8c40db3b] ground, which leaves District Judges [i:3e8c40db3b]no[/i:3e8c40db3b] discretion – if the RSL can demonstrate they are 8 weeks or more in arrears (or two months) then possession [i:3e8c40db3b]must[/i:3e8c40db3b] be given to the L/L. Naturally this is not popular with tenants or Judges, so is not often used, but a particularly harsh (in my opinion) landlord could try to go down that route. As it is a rent allowance rather than a rent rebate, the repaid HB o/p can, since 1997, be treated as arrears.

    Like I say, though, that would be mighty harsh. Glad it’s not on my desk either!! :lol:[i:3e8c40db3b][/i:3e8c40db3b]

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