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 In particular, that case was concerned with the mechanism for revising decisions that were originally made in the pre-DMA era.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.
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