Recovery of overpayment

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    We have had a HB claim in payment since April 2010. The lady is elderly and it appears she is not in good health. The property she lives in, is owned by her son and he has always completed the app forms for benefit on her behalf. He is not her appointee for HB/CTB but he is for DWP benefits. When we received the app form in April 2010, she had just moved into the property and the address for her landlord was in the Lakes and the same address was shown on the tenancy agreement. HB paid direct to claimant via bacs. So far all ok!

    In September 2011 we received an app form for another tenant at the property, the grandson of our clmnt – and nephew of the landlord. A visit was made to the property and it was found that the landlord lived at the address also and has done for since apx July 2010, because his mother needs looking after.

    My query is, can we target the landlord for recovery of the HB overpayment that has arisen because HB could not of course be payable because he lived with his mother. He completed the forms for HB, I am assuming (but I do not know for sure) that he deals with all her paperwork, bank accounts etc that he will have made the transfers of HB we paid in, into his own account etc. As he was not her appointee for HB purposes, he did not have a duty to tell us of a change in her circumstances etc. I know that we could target the claimant but given her mental state of health etc, I don’t think that she would be aware that HB is in payment. Although she has signed the forms, I don’t think that she is aware of the situation whereas the landlord definitely is.

    Any ideas?? Thank you. Therese

    Kevin D

    Although the landlord wasn’t under a duty to disclose, s/he may still be caught under HBR 101 IF s/he positively misrepresented a material fact – a merely passive involvement won’t be enough. HBR 101 has the capacity to snare even the most tangental persons because misrep can be by anyone and be entirely innocent.

    In one of the last cases I dealt with for a LA, there was a case where a relative (not LL) was not an appointee but I argued that the level of her involvement with the claimant (including completing claim forms) was such that BOTH had misrepresented a material fact (capital in that case). In what turned out to be a FtT Directions hearing, the Judge readily accepted that the relative at least had a case to answer. However, the arguments were never put to the test – the appeal was withdrawn following a set of Directions to the relative that put her on the spot in relation to the substantive issues that caused the overpayment. Of course, the withdrawal of the appeal meant the LA’s decision stood – i.e. the o/p was recoverable from BOTH.

    In the case set out in the OP, it may well be that the o/p is recoverable from BOTH the clmt AND the landlord – the latter will depend on whether s/he misrepped. The assistance with non-HB matters is only relevant to the extent of potentially being evidence as to the credibility of the LL should s/he deny any involvement with the claimant’s affairs.

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