Underlying Entitlement

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  • #22808
    Anonymous
    Guest

    We have calculated underlying entitlement at the same time of the overpayment (e.g. created the overpayment and then offset with the income they received at that time, which resulted in a overpayment.

    We are now aware of further information which would clear the overpayment and in fact credit the account. The customer has also written in outwith the calendar month asking us to look again at the decision.

    Can we can look at underlying entitlement [b:f32eb7564f]again[/b:f32eb7564f] in order to clear the overpayment on the basis that had we had all the facts the first time underlying was considered it would have been assessed on the correct income.

    However if we establish and accept the reasons for the reconsideration being late is it only at that point we could use the information to clear the outstanding overpayment and indeed award a further credit?

    #9668
    markp
    Participant

    Are you saying that you accept the reason for the late provision of details or not, because what you do will, in my humble opinion, be determined by that.

    You have already created a net overpayment by way of calculating an underlying entitlement. I am asking if that was correctly notified or not (No slur intended here and no offence meant). If not then, IMHO, you would have to revise the decision further and you may as well include the full details now to the point the OP period ends and no further if you do not accept good reasons for the delay in providing details. If the net OP was correctly notified then you could argue that the details were requested, not supplied, so the original OP calculation would stand.

    If, however, you do accept that there was a good reason for the delay in providing the additional details and you are considering a revising/superseding decision then you would certainly be able to use the (now) correct income and award any additional benefit due.

    Glad it’s yours though!

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

    #9669
    Anonymous
    Guest

    I am not so sure about that. The fact the claimant has provided the additional information more than a month after notification may not be relevant in this case.

    The reason why I say that is that at the time you calculated the overpayment, and the supposed underlying entitlement, you may have assumed that you already knew about all the changes that had occurred during the overpayment period. If you then sent notification of the net overpayment and gave appeal rights, but did not ask if there were any additional changes that may result in a reduction of the overpayment, it could be argued that you have not fully complied with Reg 104 of the HBR 2006.

    This is an argument that an assessor put forward when we first started doing underlying entitlement on a routine basis – if someone writes in and says “my wages went up, here’s the payslips”, and you then calculate the new entitlement and net overpayment all at the same time, how can you be sure you’ve got the right underlying entitlement when you haven’t asked if any else changed? I had to agree he had a point.

    Incidentally, if you do agree to recalculate the overpayment, the account will not go into credit – you will just have some excess underlying entitlement which, as it is not “real benefit”, cannot be paid to the claimant or used to credit a rent or CTax account.

    #9670
    markp
    Participant

    Reg 104 allows for underlying entitlement to be calculted
    (a) on the basis of the claim as presented to the authority;
    (b) on the basis of the claim as it would have appeared had any mis-representation or non- disclosure had been remedied before the decision; or
    (c) on the basis of the claim as it would have appeared if any change of circumstances [except a change of the dwelling which the claimant occupies as his home] had been notified at the time that change occurred.

    My point was made assuming that the details had already been requested and the decision was made, primarily, under (a). The claimant had, I assume, been given the chance to provide the full details and not done so until after a month had passed following notification of the OP, having only provided some details. Threfore that is why I think I covered both scenarios re underlying entitlement and also late revision/ supersession may apply.

    Otherwise why bother asking for income details under Reg 88 if you just consider reducing OP’s any time a claimant may decide to write in?

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

    #9671
    Anonymous
    Guest

    I think we need some more info from the original poster…!

    #9672
    Kevin D
    Participant

    As has been stated many times before, underlying entitlement doesn’t have some mystical status that separates it from any other decision.

    Assuming that the LA applies u/e in the first place (or at least provides the clmt the opportunity to provide info), the decision gets made, the clmt gets notified and that is that.

    Whatever subsequently happens (e.g. reconsideration / appeal / new evidence) is subject to exactly the same regs (i.e. DARs) as any other decision (e.g. a backdate decision). U/e cases have no immunity, nor do they have some self-contained set of rules that renders the usual regs impotent.

    Hope the above helps.

    #9673
    Anonymous
    Guest

    I dont agree with Kevin that the D&A Regs constrain awarding so called underlying entitlement at any time.

    Reg 104 is self contained because by its very nature it is retrospective. It has nothing to do with actual entitlement to benefit, it is simply a means of offsetting any amounts properly payable against the amount intiallly determined to be overpaid

    The Court of Appeal case Adan v SOS and LB Hounslow overturned ex p Lord and CH/4817/2002 and supports the argument that Reg 104 is self contained

    #9674
    Anonymous
    Guest

    Thank you for your thoughts.

    Just to clarify, the customer did not respond to the overpayment letter withing a calendar month nor did she respond to further information requested before the offsetting was considered.

    I do note that we did not ask her for any additional changes she may have had as she only advised that she was now receiving maternity pay.

    Hope this helps

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