Terms & Conditions

[aosulliv]

I should know the answer to this, but the Solicitors in this case have now officially done my head in.

A claim was revised in August 03 back to September 01 which meant that there was a recoverable overpayment of HB totaling just under £5k.

Both the Landlord and tenant were advised of the overpayment and the intention to recover the overpayment, also given right of appeal against the decision.

Invoice was issued to the Landlord in September 03 and a request for a reconsideration was recvd from the Landlord also around this time. The decision to seek recovery from the Landord was confirmed.

Landlord paid……..

Now the Landlord is seeking to evict the claimant on the basis that he has rent arrears, and the claimant is now seeking that the repaid overpayment is refunded to the Landlord and then recovered from ongoing entitlement.

Although he has admitted that he did not use his right of appeal in Augsut 03, he states that the decision to seek recovery of the overpayment from the Landlord was never notified to him and therefore he still has the right of appeal against that decision.

Assistance is greatly appreciated!

[aosulliv]

Any takers???????????

[Anonymous]

OK, I’ll have a go.

This highlights the division between the “could” and the “should” of overpayment recovery that CH/4234/2004 has reinforced. There was no “decision” in the D&A sense to go ahead with recovery from the landlord in September 2003. The decision was made in August 2003: that there had been an overpayment and that it was recoverable from both of them. It was notified to both of the affected persons, and neither of them appealed. So that’s the end of that.

In due course, having made a decision and received no appeal from either party, you set about recovering it. CH/4234/2004 tells us emphatically that this was not a new decision attracting furtrher rights of appeal. By this stage you were acting as a creditor with private law rights and/or as a public authority with public money to recover. And you did recover it – job done.

The claimant has an issue with the landlord, not with you. It is possible that he might have a defence to the possession claim on the basis that he does not owe rent arrears as claimed. This is because many commentators argue that HB Reg 95(2), which attempts to recreate the rent debt in a case like this, is [i:88d512593b]ultra vires[/i:88d512593b] because the primary legislation under which it is made does not allow this kind of debt resurrection. So the court might take the view that the rent was originally paid and once paid it was paid for good. The landlord might have a case for recovery of the money, but possibly not as rent arrears if court buys the above argument.

None of this is your problem however. You made a decision on recoverability, it wasn’t challenged, so sure enough you recovered.

[aosulliv]

Peter

That is what I thought, but you put it so eloquently.

Thanks.

[Anselmo]

Hello there,

Interestingly, a Court has made a ruling on this very recently. On 26th October this year, HHJ Cotran was asked to consider a case where “arrears” of £5000 were supposedly outstanding, £4979 of which had been caused by the landlord being asked to repay a Housing Benefit overpayment.

The Judge considered the argument about reg 95 specifically and decided it was NOT ultra vires, so repaid overpayments can be treated as arrears.

Furthermore he stated that not only was s.5(1)(p) of the SSA sufficient to allow for the existence of reg 95(2), s.189(5) of the same act DEFINITELY provided for it (s.189(5) is basically a cover-all provision that allows the creation of whatever regs are deemed expedient).

So it appears that HB repaid by a landlord can indeed be treated as arrears for purposes of possession claims.

Admittedly, this is the only case I have heard of that deals with this, and it was not a House of Lords or Court of Appeal judgement but it gives an indication of how the legal wind is blowing. And if you read the wording of s.189(5), it is a pretty strong argument.

[Kevin D]

Anselmo,

Is is possible for you to provide the citation for the case?

[Anonymous]

Interesting news, thanks for reporting that.

So was it just an initial county court trial, and if so do you know whether there will be an appeal (perhaps a bit early) and who the parties were?

My understanding is that other courts will only follow this if it emanates from the High Court or above – the doctrine of precedent does not recognise county court decisions as binding. But as you say, it’s at least an indication of how the courts might see this.

Any more case details for us?

[Anselmo]

Hello again,

It was heard at a County Court, so you’re quite right it is not binding on other courts, but as I say, an interesting indication of how Judges might be thinking – I’m still very surprised it’s never been raised at Lords or Court Of Appeal though.

I found the report of the hearing here: http://www.hardwicke.co.uk/housing/articles/06110201.htm

It’s by a solicitor from a law firm that was involved in the case, hope that helps.

[Author]

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