Recovery of overpayments

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  • #38980
    peterdelamothe
    Keymaster

    http://hbinfo.local/caselaw/ch29232010

    This is a very inportant decision for landlords. The Judge ruled that one decision must be issued to landlord and tenant – not seperate decisions. Now as far as I am aware no IT system used by a LA does this.

    It does not mean the overpayment is not recoverable – it does mean a) the LA will need to start again in most instances b) there is an argument that old overpayments are still appealable because the LA has not applied the correct case-law.

    I should add that Kevin D. does not agree with the decision in this case; his judgement is usually first rate. My view is that the onus is all on the LA to argue this out with the Judges.

    #110441
    Kevin D
    Participant

    I appreciate Peter’s acknowledgement of an alternative view. My argument goes along these lines:

    1) the interpretation given to R(H ) 6/06 by Judge Pacey in CH/2923/2010 isn’t supported by the legislation;

    2) arguably, paras 60 and 61 of R(H ) 6/06 are obiter and therefore not legally binding (see para 25 of CH/1504/2007). Judge Pacey’s decision expressly relies on the paras in question.

    3) even if those paras are not obiter, the Court of Appeal has already determined in “Awaritefe” that defective notifications shall only render a decision to be of no effect where the defects have resulted in “significant prejudice” or “substantial harm” to the person(s ) affected. It is submitted that a Court of Appeal judgment must be preferred to a UTD where the same principles are at issue.

    There were occasions when assisting LAs where notifications were less than great – far too often if truth be told. Every now and again part of the appeal would focus on that point. In response, I cited “Awaritefe” every time and this was accepted by Tribunals without exception.

    So, by all means argue it but I would be genuinely astonished if any subsequent UT considered Awaritefe to be rendered of no effect by Judge Pacey’s decision.

    One other point which other forum contributors have made is the possibility that all Judge Pacey’s decision does is follow R(H ) 6/06 to the extent of requiring each party is notified of the same decision. The differences in opinion between Peter and myself are on the assumption that Judge Pacey’s decision requires an identical notification, including the names of the addressees, to be issued to each party.

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