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HB overpayment-help with case law please?!
Hello, i have been assisting an elderly client and what started as a simple succession request has become a complete can of worms!! Basically the clients partner died last year; she was a council tenant in a two bed flat. As the client had been living at the flat with his partner for over 20 years we requested succession for him in the hope that should this be granted he would be able to move in to a sheltered housing flat as he found it very upsetting being in the flat they shared alone and he also did not want to take up a two bed flat which could go to someone else.
The problems have occured as it transpires the client was in receipt of HB on the basis of being a lodger-and we were obviously filling in forms stating what the client had told us-ie he was her partner and carer. The client claims he knew nothing about all of this, and genuinely does not seem to understand what has been going on; he advises that his late partner dealt with all of their affairs, paid all the bills, completed any forms etc; he seems extremely genuine, very confused and obviously upset by the situation.
I referrred him to a solicitor, who is obviously dealing with all the legal issues now, and he has been interviewed under caution; when papers that he had supposedly signed were put before him he claimed he had never seen them before and the signature on the forms was not his.
I had put in a new claim for HB & CTB for him last August as i had been advised that he was in receipt of some HB but that the CTB had been in his partners name (this was before the issue re HB claim came to light) Since then he has had the interview under caution and received an enourmous HB overpayment bill.
One of the recent letters he received advised him he could claim HB again now based on his current circumstances-(I filled new form in and requested 3 month backdating) however i phoned to ask what had happened to the previous claim that had been submitted back in August, i was told that the client could not be paid any money for that period due to the fraud investigation. I spoke to the solicitor about this-the solicitor advised that he is not a welfare ben expert but he advised me to write to the council about this as in his opinion despite the fraud investigation the client should be eligible for this period as it is a relevant change of circs as his partner had died and he was living alone and in receipt of GPC. I am going to do as he suggests and write to the council but wanted to confirm this information about the claim-should he be eligible despite fraud issue coming to light? If so does anybody know any case law i can quote please? Even if we can get it paid back to that period it will be a drop in the ocean compared to what they say he owes them but at least it will be something as at the moment he is just in limbo, waiting to see if he will be prosecuted and with mounting debts and he really is getting very depressed. Any help greatly appreciated (and sorry for the very long post!)
If the LA has REVISED all of the earlier decisions, removing entitlement from the very beginning of the “lodger claim”, my view is that all of the earlier award is entirely extinguished and there is no legal basis on which any new “entitlement” can be awarded without a new claim being made. A closed period supersession relies on the currency of an award continuing. By definition, the complete removal of ALL of the earlier award means there is no longer an award that has any currency.
Have the LA looked at whether there is any underlying entitlement ? In my view if the position is now that any HB claim should have been made on the basis of an LA tenancy with your client and his partner as a couple, then the overpayment should be calculated by referrence to an underlying entitlement that a claim on that basis would have produced.
Hello and thank you very much indeed for the replies. The council have Revised the HB claim from when it started in 1992 and cancelled the claim from when it started as they are saying that the clients tenancy was contrived to take advantage of HB scheme.
I doubt that the LA have looked into whether the client has an underlying entitlement-thats certainly never been mentioned in any of the phone enquiries i have made with them-should i raise this with them?
Having read the replies a few times (again thank you!) am i right in thinking then that as the LA have cancelled his entire claim for the entire period in question, that a closed period decision argument cannot be used and that the best we can hope for is that they start to pay HB following the latest new claim?
Dear SJT,
I’m a bit thrown at the idea that HB was paid at all. Most tenancy agreements (and especially council agreements) have specific provision against sub-letting. Therefore, your client’s late partner could not have legally sublet the property without specific authority from the local council’s Housing Dept.
It would be advisable to require the local authority to provide a copy of the client’s late partner’s tenancy agreement. If the tenancy agreement does specifically not authorise sub-letting, then there may be an argument that the payment of Housing Benefit by the council’s benefit service, in respect of a sub-let in council property without written authority from the Housing Department, was official error. Your post states that your client obviously knew nothing about this and, therefore, the overpayment would not be recoverable in those circumstances.
Just a thought on an alternative approach.
Regards
Chris
then there may be an argument that the payment of Housing Benefit by the council’s benefit service, in respect of a sub-let in council property without written authority from the Housing Department, was official error. Your post states that your client obviously knew nothing about this and, therefore, the overpayment would not be recoverable in those circumstances.
Just a thought on an alternative approach.
Regards
Chris
Unlawful subletting does not preclude payment of HB. There are many legal authorities that have made it clear that there may be a perfectly legitimate and enforceable liability between a LL and tenant, even if the LL is not authorised to let (or sublet). I doubt the payment of HB in this case would be an official error simply because the LA’s tenants should not be subletting.
Further, the test of knowledge for recoverability only matters for HB/CTB overpayments if the o/p was caused by an official error AND the clmt didn’t contribute to the cause of the o/p AND could not reasonably be expected to realise there was an overpayment at either the time of any notice relating to the payment(s) or at the time of the payment(s).
If it transpires the o/p is correct and there was no official error, the o/p will be recoverable irrespective of any other circumstances.
Based on the info given so far, the crux appears to be whether the clmt is telling the truth about being the partner of the former “legit” tenant. If he was not the former tenant’s partner AND assuming his HB claim is otherwise legit, there won’t be an overpayment. If he was a partner, I can’t see there can be any decision other than HB was not payable.
Hello SJT. Its a mess isnt it!
On what basis is your client currently trying to claim HB? Have the council signed him up on a mesne profit basis?
It is indeed a can of worms! I was hoping for a simple yes or no answer!! If only things could be so simple!!!
Seriously though- thank you to everybody for all your help; its given me a lot to think about with not being a HB expert.
In terms of the mesne profit issue, he was signed up as a tenant just before the whole fraud issue came to light so not sure how this will affect things? I need to read (and reread!) replies to decide next course of action-so will probably be asking for help again soon!!!
I raise the issue of underlying entitlement primarily because of the claim linking.
If I had looked at this I would have aproached it like this:
Tenancy commences in Mr’s name after partner dies. It comes to light that he had been in receipt of HB (presumably paid to his wife as landlord (direct) if he knew nothing of it) as a private tenant.
He may have had an entitlement to HB had he claimed HB as the partner of a council tenant at the original claim date, this would depend on his and his partners financial circumstances throughout.
That effectively means that I revise those bits of the original decision(s) that were based on a “mistaken” belief as to the facts. Ie that he has (or is treated as having) a liability to pay rent as a council tenant and he has a partner, her income is X.
at my LA we have absolutely no problem accepting the liability of a claimant that is not named on a tenancy agreement when it is clear that their partner is. I see no reason why that should not be acceptable.
If all of that decision making is made after it has become clear that he is now a single claimant with a liability to pay rent, then the whole “disallowed” period (if indeed it is ultimately) becomes a closed period for the purposes of the superssion, and continuity is preserved with NO backdating required.
Hope this helps.
hello again!
I saw the client this morning, the good news is that the LA have decided not to prosecute and they have put HB & CTB into payment as of Nov last year. They are going to write to him to tell him the amount they will deduct from HB to cover overpayment but i have been advised it will be under £13. I’m presuming this is the best we can hope for under the circumstances?
In terms of the underlying entitlement, HB was being paid to the client and he was giving the money to his partner-in terms of his not understanding (and still not understanding) he was just handing the money to her, doing what he was told, she did all form filling, etc-apparantly when signed forms were presented to him during interview under caution the signature on them was completely different to his signature-very neat apparantly, unlike the clients. So can i ask you please Julian? The fact that the money was going to him as his partner had mistakenly/fraudulently/for whatever reason completed forms and not at any point said he was her partner-would that make a difference to the underlying entitlement issue?
Anyway, its nearly pub time and i have next week off-happy days!!
Thank you again everybody!!!
If he is signed up as mesne profit, and benefits are in payment, now is the time to approach the LHO with a suggestion of a move to sheltered, whatver you do make sure he tops up to cover the deduction for O/P.
Point out your client currently occupies a valuable family resource, but wants to move to sheltered. You might also mention that if they serve notice he has no where else to go and woyuld need to apply as Homeless (under the provisions of the Housing Act 1996 part vii, he has a priority need so they would have to house him anyway). Suggest that they write an exception to policy report so that this can be done quickly. Good luck.
Don’t worry about the tenancy; .
You must always “worry about the tenancy”, in this sort of case. That is whythe case went wrong in the first place, you need to know exactly where he stands if you are going to assist your service user with his original request.
If I had a pound for the damage, well meaning benefits advice workers, had given wrongful housing advice, ending up with their customers becoming homeless, I would be very rich indeed. You need to be careful how you handle this.
Your client wants you to achieve a move to sheltered, if you dont handle this well, you might get him evicted. By all means try to assist with the overpayment, but your prior objective is to get him a secure permanent tenanncy. That way he is safe.
If the LA are letting him occupy on the basis of mesne profit, he is not a full tenant, the LA could easily go for a possesion order.
....however it’s an interesting question, if, as a couple they were entiteld to HB whether the offsetting should still be applied.
I appreciate the context may have become skewed but, just on the offchance any confusion may be caused, it may be worth pointing out that a “couple” cannot be entitled to HB (or CTB). There is no provision allowing “joint claimants” for HB/CTB and therefore only one can be “the claimant” - the other is the partner.
You have completely miscontrued what I typed…
No…. I didnt want what you had typed, to be misconstrued…....
This client has already been advised to claim sucession, when they had a HB claim in as a border.
I do hope that the overpayment decisions have been appealed ? If the caseworker with conduct of this case wishes to discuss the case with me he should feel free to call Newcastle Law Centre on 0191 2304777 .
I don’t think the previous HB claim (where he allegedly stated he was a boarder /lodger) when he was in fact married to the deceased should affect his right to succession to the tenancy. As the deceased legal spouse he has an automatic right to succeed to the tenancy through survivorship. The Housing Dept should not base their decision on a Housing Benefit decision. Get him a decent housing lawyer to sort out the succession issue.
Alan
Housing officer & benefit advisor ( 2 jobs 1 employer!)