Terms & Conditions

[jmembery]

A claimant dies.
The partner makes a claim and declares a non-dependent who has been in the household since 2004.

Overpayment is created. We were going to invoice the estate, but looking at 101(2)(b) it would appear that we can recover the overpayment from the partner, as long as we do not do it through ongoing entitlement. (I.E we send an invoice).

Partner would, of course have a right of appeal against the overpayment, and we probably would have to issue a decision notice listing the claimant and partner as possible targets for recovery etc.

Is that how others read it?

[gerryg]

For what it’s worth I read it the same as you

[Anonymous]

It is not how I have understood this Regn. HB 101(4) appears to be saying that recovery may be sought via deductions from the partner’s HB only if 2 criteria are satisfied – that the claimant and partner were members of the same household during the overpayment period AND during the overpayment recovery period. If the claimant dies, are the claimant and partner still members of the same household when the deduction is made? My understanding is that the only recovery method for the deceased claimant’s overpayment is via their estate. This is because the claim for HB was made by the claimant only – there is no couple-claim provision for HB/CTB – therefore the debt also belongs to that claimant. HB 101(4) assumes where the claimant and partner are still living together during the overpayment recovery period, that the original claimant is contributing to the repayment – but that when the original claimant ‘leaves’ the household (death included) that assumption cannot be made. There are precedents for such assumptions in other parts of the Regns – NDD’s for a start!

[Anonymous]

This query simultaneously raises two of the most controversial aspects of the amended Reg 101.

The first question is: in what circumstances is the partner a prescribed target for recovery?

The second question is: does the current version of Reg 101 apply to overpayments that were made before it came into force?

[b:49c0998eac]When is the partner a target?[/b:49c0998eac]

To solve this, we need to trace the legislation back to its pre-October 2001 form. Having retrieved my 2000 Findlay from under the wobbly table leg, I see that s75(3) of the Act said in those days that an overpayment was always, but always recoverable from the person who received it but in prescribed circumstances it could be recoverable from someone else as well. Reg 101 prescribed that someone else as the claimant and anyone else who caused the overpayment by failing to disclose or misrepresenting. Paragraph (2) talked about deductions from the partner’s HB where they remained members of the same household, but the partner was not clearly prescribed as a person from whom the o/p was recoverable. So para (2) of the old Reg 101 could be read as prescribing a method of recovery from the claimant; certainly there was no authority to recover from the partner in any other circumstances (unless by coincidence they had misrepresented or failed to disclose).

In October 2001 that all changed. Section 75(3) was amended and Reg 101 was redrafted. Para (2)(b) said the overpayment was recoverable from the claimant’s partner if it “is made” to a claimant “who has” a partner. CPAG’s commentary has always argued that para (2)(b) put the partner in the frame if they were there at the time the overpayment was made. Para (4) then went on to restrict recovery by deduction from the partner’s HB to those cases where the claimant was still in the same household at the time of recovery – but in CPAG’s view all that para (4) achieved was to restrict that particular method of recovery, without prejudice to any other. The counter-argument to that view is: what is para (4) doing in Reg 101? Surely if it was intended to restrict one method only, it belonged in Reg 102? By putting that para in Reg 101, surely the legislators were restricting the circumstances in which the partner was a prescribed person? I don’t think this has ever been tested.

Finally, we have the April 2006 amendments. The same legal point arises: is the partner a prescribed person if para (2)(b) alone is satisfied, or does para (4) further restrict the application of para (2)(b)? In other words, is para (4) about the target or is it about the method?

[b:49c0998eac]Is the new Reg restrospective?[/b:49c0998eac]
If the CPAG view is correct, the partner will be the recovery target less often after April 2006, because the Council must first exhaust para (2)(a). If someone is caught by para (2)(a), that’s the end of the matter. Whereas before April 06, by the CPAG’s agrument the partner was a prescribed target in every case. So the approach you take in this case will depend very much on whetrher the legislation is retrospective. If it is, you would have to look at misrepresentation and failure to disclose under para (2)(a). Depending on how your claim form declaration is worded, and which bit the partner signs, you may or may not be able to attack the partner under para (2)(a). The claimant almost certainly would be caught by para (2)(a), and the fact that he or she is dead isn’t going to change that.

There is a further argument about whether para (2)(a) can apply to the claimant if the claimant is the same person who received the money – it is possible to argue that para (2)(a) should only be used to target somneone else “instead of” the payee. So in that event you would drop through to para (2)(b) and, according to CPAG, you’d be free to go after the surviving partner.

And to think I was saying a couple of months ago that the case law had settled down and there was nothing left to argue about…..

[Anonymous]

As outlined in my earlier post, my view is that the Regs to be applied are the Regs in force at the date of your decision that there has been a recoverable overpayment.

In this case, the person who failed to disclose was the claimant and so it is only recoverable from the claimant (or of course his estate)

[Anonymous]

Jm – if Paul Stagg’s analysis is correct, then yes you can indeed recover by invoice in this situation. I appreciate Stainsby has a different view of which reg applies when (which I think is well argued and persuasive).

Paul Stagg, Stainsby and PB are unquestionably three of the leading experts on HB Overpayments so I reckon the best course of action is to ask the fourth! Commissioner Jacobs will be talking about his desert island decision in London on PB’s “current legal issues” course on 20 November so thats the perfect opportunity to do so.

[seanosul]

I would have to agree with Stainsby on this. The principle in law is that legislation cannot be retrospective, the consequences of breaking that principle, taken to the exteme would to be criminalise behaviour that is perfectly legal today but not some time in the future.

The law must rest on what was in force at the time of the decision.

[Anonymous]

So – it seems that much depends on which op decisions or periods are affected by the 2 different versions of HB 101 we have so far. My summary of some positions is that
a) Paul Stagg appears to be saying in his presentation last week that it ‘probably’ does not apply to payments (overpayments?) made prior to 0406 – does that mean he believes the jurisdiction of the new HB 101 depends on the overpayment perid, not the date the overpayment decision is made; on p7 of his presentation i think he is suggesting that for op periods that straddle each of the commencement dates of the 3 versions of HB 101, decisions relating to ‘recoverability’ must be applied separately to the periods pre and post the change date – so, nothing to do with the date the decisio is made
b) Stainsby and Seanosul appear to be in agreement that the date the overpayment decision is made governs which version of HB 101 is applicable;
c) PB ‘raises the issue, and so does
d) PDLM in his presentation last week.
Huge apologies to all if is have misrepsented you, please put me right where i am wrong.
Thus, it is likely that each view depends on an interpretation of The Interpretation Act 1978 s16. I wonder if I could prevail on each of the 4 wise men above to give us the benefit of their analysis of s16, that convinces them of their view so far?

[MissMoody]

I doubt jmembery(original post) has waited 3months for a decision on this so would be interested to see what action was taken in this case and if it was correct?!!!!

[Kevin D]

Not sure how up to date this is, but the Interpretation Act *appears* to be on these links:

http://www.hmrc.gov.uk/taxes_act_2002/ota/otapt2/ia78.htm
http://www.hmrc.gov.uk/taxes_act_2001/ota/otapt2/ia78sch.htm

[jmembery]

Well Missmoody, it was never really tested for long complicated reasons.

We did invoice the partner who, instead of appealing complained to the Ombudsman.

After the, it has to be said a fairly cursory, investigation the Ombudsman found “no maladministration” on some general points and “out of jurisdiction” on the overpayment decision itself as the partner could have appealed.

However, following the investigation the head of housing here found evidence of a *possible* failure of a past member of the housing division to pass information on to the Benefits section which *may* have been in relation to the non-dependent. She therefore asked members for the overpayment to be written off. Members agreed.

Edit – PS, Perhaps I should say that after reading all the comments posted about this and reviewing the legislation again my view has now changed and in a simular situation I would now invoice the estate.

[seanosul]

I went to submit a huge post about why I do not believe Section 16 does not apply, I think Section 4 applies however our internet connection here requires us to log back in after every 20 minutes. I posted the message and up came the log in screen and so my message is now out somewhere in the ether.

All the 1978 Act was consolidate legislation and principle going back to the days of the Magna Carta. In that the State cannot prosecute you for something legal today, that Parliament may make illegal tomorrow. The reverse is also the case (a relatively recent example was the prosecution of gay couples whose partners were 17, before the age of consent was reduced).

For legislation I think the Act is quite straight forward. Section 4 is quite clear

4.-Time of commencement.

An Act or provision of an Act comes into force-

(a) where provision is made for it to come into force on a particular day, at the beginning of that day;
(b) where no provision is made for its coming into force, at the beginning of the day on which the Act receives the Royal Assent.

In addition to this, para 17 also covers the situation we find ourselves in.

17.-Repeal and re-enactment.

(1) Where an Act repeals a previous enactment and substitutes provisions for the enactment repealed, the repealed enactment remains in force until the substituted provisions come into force.
(2) Where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears,-

(a) any reference in any other enactment to the enactment so repealed shall be construed as a reference to the provision re-enacted;
(b) in so far as any subordinate legislation made or other thing done under the enactment so repealed, or having effect as if so made or done, could have been made or done under the provision re-enacted, it shall have effect as if made or done under that provision.

Regulation 101 is an enabling power that allows the Council to decide who to recover overpaid benefit from and who it cannot be recovered from. That decision is taken at the time of the calculation and creation of the overpayment. Therefore the only legislation that can apply is the legislation in force at the time. If this is not the case for large overpayments covering the years before the Decision Making and Appeals Regs we would have to convene Review Boards for the initial part of the overpayment should there be an appeal.

[Anonymous]

The House of Lords noted the relevant sections in Plewa

“Section 16(1) of the Interpretation Act provides, so far as relevant, as follows:
“(1) … where an Act repeals an enactment the repeal does not unless the contrary intention appears …
(c) affect any right, privilege, obligation or liability acquired. accrued or incurred under that enactment:
…

(e) affect any investigation, legal proceeding or remedy in respect of any such right. privilege, obligation, liability …
and any such investigation, legal proceeding or remedy may be instituted. continued or enforced, … as if the repealing Act had not been passed.”

There can be no liability in relation to an overpayment until the relevant revsions or supersessions, and recoverability decisons have been made, so the remaining quetion is whether anyones accrued rights (including defences) against recoverability action could be infringed by the new provisons.

As I said in my earlier postings, no such rights have been eroded, in fact they have been enhanced and expanded by the new legislation. Plewa therefore has no bearing on the 2006 overpayment Regs

[Author]

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