I have a rather muddled situation about an overpayment and would appreciate any advice: Housing benefit awarded a Discretionary Housing Paymant to cover full rent and paid the landlord direct. The claim was then reassessed and claimant entitled to full benefit for same period. Both payments went to the landlord. Council then asked landlord to repay the discretionary housing payment, as there was an overpayment. Unfortunately, landlord sent the refund to the tenant and not housing benefit. Tenant cashed the cheque and is not able to repay. Housing benefit are saying there is no right of appeal and landlord needs to repay regardless of the situation. Is this correct?

The LA can only recover an overpayment of DHP where it has determined that:
(a) whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, a material fact and, as a consequence of that misrepresentation or failure to disclose, a payment has been made;
or
(b) an error has been made when determining the application for a payment, and as a consequence of that error, a payment had been made which would not have been made but for that error.
(Reg 8 of the DFA Regs 2001).

If this is the case, the LA can pursue recovery, but not through recovery from ongoing HB or the “fast track” procedure through the courts as it is not an overpayment of HB.

Although there is no statutory right of appeal, the LA can only really enforce recovery through the courts where the action can, of course, be defended.

Thank you for your reply. I am not sure I fully understand these regs. Would you be able to explain if you think the regs could help in this case? The full background is as follows: My client was awarded a DHP for a six month period, at a time when he was not entilted to full HB. Half way through the six month period, he became entitled to full HB due an income support award. HB did not amend their records until some weeks after the income support start date and hence there was an overpayment. All payments were made to the landlord, so my client might not have known he had been overpaid. There were so many odd payments and the account was in arrears, that it was difficult to spot that there was an overpayment. However, the council are insisting on recovery from the landlord.

A couple of points;

I'm presuming that your client is the claimant not the landlord? If so, I'm not sure how your client is affected by the LA's decision to recover from the landlord - only if the landlord decides, following recovery from him, that this puts your client's rent account into arrears is your client affected.

If the landlord is threatening this, then I can see why your client might have interest in the outcome - and why it's maybe in his interest that the landlord succesfully defend the action.

So, assuming all of the above;

Reg 8 (2)(a) - "misrepresented or failed to disclose". Misrepresentation would require a positive statement/lie - and I'm assuming this doesn't enter into the equation. There is a potential failure to disclose on the part of the landlord if he was aware (and this is actually aware, rather than "could reasonably have been aware") that he was being paid twice for the same premises.

Reg 8 (2)(b) - "an error has been made when determining the application". A non-starter for the authority due to the words highlighted. The application for DHP was not determined erroneously - the error arose only after the determination and was nothing to do with the determination.

Hope this clears things up.

Thank you for your help in explaining this

In the circumstances you describe, there would only be a recoverable overpayment of DHP if your client did not report to the LA the fact that he/she was now in receipt of IS promptly.

However, from the way you describe it, the LA knew that your client was in receipt of IS but just did not process this change. It therefore sounds like this overpayment is not recoverable.

Surely, in this instance, it's the very fact that the client did report the change promptly - and the authority processed it - that led to the overpayment? ie - receipt of IS triggers award of "ordinary" as opposed to discretionary HB. They just kept on paying the discretionary HB too.