This probably a golden oldie and I should know this, but sadly, I have never had the ‎time to get an answer.‎

A local authority originally wrote to us to say that they have overpaid one of out ‎tenants and omitted the reason as they had chosen to recover from ongoing ‎entitlement.‎

The customer then moved, HB entitlement stopped, we then get an invoice for the ‎balance of the original overpayment (a substantial amount). Up to now, I was happy to just request a ‎schedule 6 compliant notification and then depending on the reason I would either pay ‎back or request recovery from the former customer. ‎

However, I can't help but feel that when the original decision was made, they chose ‎the tenant to be the party responsible, so why all of a sudden have they changed their ‎decision of from whom to recover.‎

Can they change their decision? Reg 101 does seem too easy an answer.‎

I look forward to a response, thank you.‎

LAs can choose to change the target of their recovery, even if they have already started to recover from the claimant. However, this gives you the right to appeal against the whole of the original overpayment, even that which has already been recovered from the claimant.

It might be worth your while pointing out to the LA concerned that if you are now made the target of recovery you will appeal and, if you are successful, they will have to repay all the money they have already recovered from the claimant.

Thank you, I am not clear on the last bit though.

If I am successful with an appeal and the LA decide not to recover the overpayment from us, why would they have to repay the already recovered amount that was taken from their ongoing HB? This recovered amount is effectively from the customer direct. Wouldn't they just have to not chase us for the outstanding amount?

Am I misundertanding what you are saying?

Thanks.

Jill,

One possible outcome of any appeal that is made, is that the entire ooverpayment might be assigned as official error, non-recoverable... This would mean that the LA never had legal authority to recover any of the overpayment in the first place, and therefore it would have to refund all/any sums that had been recovered, regardless from whom the recovery took place...

I think you need to establish first whether there was a decision to recover from the tenant or you, as recovery from both can be via on-going benefit.

I have a similar on-going argument with the local authority, that since they never declare who they are recovering from in the notification decisions, we assume that recovery via on-going benefit is from the tenant, and we rarely make any appeal or representation til it's too late. The local authority are very bullish that the notification letters are schedule 6 compliant and don't need to unequivocably state who recovery is from, but I am hoping to wear them down on that.

fib

The original decision was to recover from the tenant as them LA decided to recover via ongoing HB. However, in this circumstance, I will await a valid notification letter and then see what the reason before I decide to appeal or not.

But I agree with you that they should state where the recovery is coming from, otherwise how are you to know whether it's you that needs to appeal or request a review of recovery? I raised this at a RSL meeting for one LA and was advised by the other RSLs "if in doubt, appeal!" (But then by appealing, are you admitting that the notification was valid?)

Anyway, thanks everyone for the advice. It's been a great help.

Recovery can be sought from both the tenant AND (not 'or') the person to whom payment was made (SSAA 75 (3), so why would an LA need to specify one or the other?

Also Sch 6 doesn't require that the LA state who it is seeking to recover from...

For the simple reason that a landlord has a right of appeal against an overpayment if it is being recovered from them, but has no right of appeal if it isn’t.

Because (although a long disputed issue) SSAA 75 (2) & (3) imply a duty of discretion on the LA.

this has been muddied somewhat by the tribunal of commissioners ruling R(H)3/04. This decision included doubts about the application of discretion but I notice that the commentary to the new edition 2004/2005 of CPAG HB & CTB Legislation argues R(H)3/04 is erroneous on this point.

Nevertheless R(H)3/04 makes it nigh on impossible to challenge it anyway. So right or wrong there may not be much you can do about it.

JM

That doesn't mean they need to chose ONE target for recovery.

Recovery can be sought from BOTH, so it has no affect any anyones right to appeal.

My point is, there's no need to specify one party. You can advise both that recovery will be sought.

Still think its going to give you complications if you follow the line can recover from both.

Are they jointly or severally liable?

What about the discretion not to recover at all?

or are you like several authorities saying that they do not have to make a real discretion aat all?

Derek S...

You state "Nevertheless R(H)3/04 makes it nigh on impossible to challenge it anyway. So right or wrong there may not be much you can do about it".

I think that is not correct... It is entirely possible to challenge O/P recovery from landlords... R(H) 3/04 is a complex decision... and I for one see it as a way of expanding upon the potential for recovery, not restricting it....

R(H) 3/04 simply restricts recovery to issues that are 'reasonable' and therefore covered by JR... Trust me... I have worked in HB depts. for 18 years and by now have seen literally thousands of decisions that were not just amenable to JR, but that should have been JR'd (including an RSL that was threatened with removal of direct payments if they continued to appeal against O/P decisions, as they would be classed 'not fit and proper' if and would 'lose' their right to direct payment - the more staggering was that the RSL (and a 'massive one in London too), agreed to restrict it's appeals....

Anyway, you can find my previous postings on challenging recovery on rightsnet thread http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=647&mesg_id=647&page=

where you will also find reference to Commissioners decision R(IS) 26/95 which says more about what is reasonable than R(H) 3/04 ever could...

Derek

It's not a process we adopt, but it can be done. You are using your discretion, because you have decided to recover from both. You will have also decided that you are seeking repayment, so you have considered whether to recover or not.

The thing is, if an LA later decide to invoice a landlord, it doesn't matter, provided the landlord received a Sch 6 notice about the overpayment at the time.

Had they believed it was wrong, they had the opportunity to deal with that.
Correct me if I am wrong, but ther's nothing requirement that the LA needs to request repayment at that point. The Sch 6 letter could be sent and a request for payment could be left until after the appeal period.

If a landlord beleives the overpayment is wrong, why should they only take that up, if they are asked to repay it?

To Paul

Because it is the decision to recover from the landlord rather than the claimant that we are challenging. In other words there is a distinction between recoverability and actual recovery. If I know that there was a defect in the recoverability decision I always appeal. In most cases only the claimant has the information to judge if there is a defect or not.

I make sure any claimant is offered the chance of help to dispute an o/p decision. Most claimants do not.

However unless I am told why an o/p should be recovered from the landlord rather than the claimant, I suspect that a decision (on the case circumstances) has not actually been made but a default decision (without reference to case circumstances) has been made instead.

To hb specialists
I have not given up appealing but I am disappointed with the response of the tribunal. They seem to have received guidance on applying R(H)3/04 at my local tribunal and the interpretation is that, as the tribunal chair put it, "the appellant has to prove that the LA was so unreasonable as to be potty". The chair would not consider any argument about reasonableness unless it was completely extreme.

I am currently awaiting 3 cases sent to commissioners for leave to appeal.

I still have two outstanding questions (unless I have missed them).

Firstly, fhe DWP have maintained all along that they were going to introduce regs regarding landlord appeal rights. Last I heard these were rumoured to come last year.

Anyone any knowledge of this?

Secondly, has anyone seen a copy of the guidance tribunals have received for R(H)3/04?

Derek

You state:

However unless I am told why an o/p should be recovered from the landlord rather than the claimant, I suspect that a decision (on the case circumstances) has not actually been made but a default decision (without reference to case circumstances) has been made instead.

My decision was to recover from both? I've made a discretionary decision in this individual case, using the relevant factors. Where does it state that I must chose one or the other? More to the point where does it say that I have to tell you that I am ONLY recovering from you as a landlord?

As far as I can see it doesn't state you have to state one or the other but its rather implied in the concept of making a choice. I suppose all the choices are recover from (1) claimant, (2)landlord, (3) Both or (4) neither.

If my LA did choose both and told me why (and I mean actually explained it not just stated "we decided"), I think I would have to accept it.

My problem is that the LA in question will not tell me why. So I do not know if any decision on the case circumstances has been made.

i haven't had to get involved in these claimant/landlord wranglings, and i'm slightly confused.

isn't a choice of who to recover from, forming part of the decision, implied in the regulation? how would you notify one debt and two separate debtors?

if a decision is given requiring repayment from a claimant, and then the LA seeks repayment from the landlord, does the LA have to revise the original overpayment decision, (giving grounds for the revision)?

jj

Derek S…

I am sorry that you are having such trouble with TAS... If you do however get leave to appeal regarding the O/P's I would love to know, (and esp. the decision of the Commissioner, though I know that will now be sometime later in the summer, even if you obtain leave).

I have a TAS hearing in the coming weeks regarding a £50,000 HB O/P where (I am acting for the claimant), the LA submission failed to even mention the law regarding the O/P, and where the O/P was made both to the appellant and at other times to the L/L... But the LA can't say which is which, and no correct decision letters have been included in the bundle...

If TAS give me any grief about the series of decisions being reasonable in my case regarding targets for recovery, I will be joining you at the Commissioners' (with my clients consent, obviously - though as I am acting pro-bono I can't see them objecting - esp. when given the size of the O/P)!

Good luck... (to us all !!!)

A couple of comments- The national housing federation tell me that the right of appeal over the issue of legislation is still going through the consultation process with LAs, who are not surprisingly not keen- so still a live issue. I wish the NHF would push this a bit harder. I suspect that it might need primary legislation and will be delayed until after the election.

One of the decisions made by the court of appeal in the Chiltern Case was that the question of from whom recovery was sought was a decision under the regulations, which means that it has to be notified. A council cannot not specify from whom recovery is sought on a notification if there is more than one possibility. Similarly, I don't think that a council can treat a decision to recover initially from the claimant but to recover from the landlord as a decision to recover from both- its a decision to recover from the claimant. If a LA wants to recover from both the tenant and the landlord it must say so clearly on the notification- few councils do in my experience- If this happens both the claimant and landlord should their appeal rights at this stage. Otherwise a landlord or claimant who is later asked to repay after initial recovery has been sought from the other party has full appeal rights and a right to a new notification.

I think that appeals should always be made on the grounds that there may not be a recoverable overpayemnt of the amount sought- landlords often accept the LA's view of the OP when, on inspection it is fairly contentious or obviously wrong.

Finally, recovery from ongoing benefit for the claimant counts as recovey from the tenant, not the landlord.