Which regulations?

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    Claimant was in receipt of Housing Benefit from 1990 to 2005. We have now discovered that she has been the joint legal owner of the property from 1987 to date and have asked for all the money back. Shortly before the award decisions were revised, the claimant turned 60. She was of working age throughout the whole of the overpayment period.

    Which set of regulations would you quote in your decision letter?

    Kevin D

    Well, the revision decisions were made “now”. As the only regulations in force “now” are the 2006 SPC regs, my view is that they are the only regs you can use.

    If you’re worried about techie arguments that the o/p doesn’t stand because the reg citations were different, the clmt will lose. Easily. The consequential regs cover that scenario (can’t locate the reg for now) and, in terms of the 2001 DARs, see [b:4c02804788]R(H) 6/04 – aka CH/296/2003[/b:4c02804788] – which confirms that “determination” counts as a “decision”.

    Hope that helps.


    Thanks, Kevin. What I actually did was to quote the HB (Persons who have…etc) Regs 2006 and then said that if I have erred on that point the references should be to the HBR 2006 – the regulation numbers are the same in this case.


    I think you need to distinguish between Regulations that govern the claimant’s substantive entitlement, and those that govern the business of decision making.

    As regards substantive entitlement, you must surely quote the Regulations that applied at the material time – because they change. You will need to show that the “owner” provision was always present in the Regs at the times when she was getting HB (you know it was and I know it was, but you have got to show that).

    I therefore think you need to quote Regs 2 and 10 of the 1987 Regs, which thankfully were never amended in the time frame you mention, for all periods of HB up to March 2006; and then Regs 2 and 12 of the HB (persons who have attained…) Regs since then.

    That’s substantive entitlement taken care of. Now the business of decision making – the principle confirmed by the decision that Kevin quotes above is indeed that you use the legislation in force at the time when your decision is made. In particular, that case was concerned with the mechanism for revising decisions that were originally made in the pre-DMA era. The transitional Regs provided for any case that was already in the old review system to proceed at the equivalent stage of the new system after July 2001. But the transitional Regs were silent on what to do about pre-DMA cases falling to be reviewed for the first time after July 2001. The Commissioners decided that the new decision-making regime applied.

    I think the same principle applies to overpayments as well: even though the money was paid in the past, when it comes to decidng whether it is recoverable and from whom, it is the current Regs that apply.


    Thanks for that Peter – I will bear that in mind when writing the submission.

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