Hi

We have received a notification of a very large (over £7000)overpayment of Housing Benefit for a former tenant of one of our properties. The tenant has now moved again, so we have no forwarding address. The reason for the op has been given as the end of an IS claim, several years ago.

We have asked the LA not to recover from us, as landlord, but they have refused. I know we cannot appeal against the decision from whom to recover and we cannot appeal against the op itself as, without being able to contact the claimant, we have no way of proving whether or not it is correct. Would the burden of proof be with us or the LA to determine any underlying entitlement if we appeal against the op.

Is there anything else we can do?

Who says you can not appeal???

From what I can see, not only have you appeal rights, but fairly good ones! Even if your appeal rights have been 'limited' by CH/5216/2001 you can still appeal! From what you have said in your post, 'Wednesbury' reasonableness would seem to be an issue. Is it 'reasonable' to recover from you, and not the former tenant? What has the LA used to reason it’s decision? Has the LA sought to locate the former tenant (a very easy process given the LA has access to the IS/JSA systems and DCI through RATs), and have they asked the former tenant why he/she did not declare that change of circs at the time? Is the LA therefore fettering it's discretion???

All these considerations are appeal-able by you to TAS, as all are potential JR routes to challenge. Also if you raise the issue of Underlying Entitlement, the Tribunal will have to consider it, as you can raise matters relevant to your appeal and the Tribunal MUST consider them, (though they do not have to accept them). See paras 12 to 24 of CH/1229/2002, & paras 16, 17 and esp. para 20 of CIB/2751/2002). As a 'person affected' you are the appellant!

You have rights of appeal against the recovery from you, even if only on JR grounds, but JR grounds are all about reasonableness, (and you clearly do not consider the LA's decision reasonable, otherwise you would not have placed this post). Indeed, even the amount of the overpayment is covered by ‘reasonableness’! The terms of reg 104 (underlying entitlement), are mandatory, not discretionary (and therefore again appeal-able to TAS as in JR terms, you would be seeking an order of mandamus to make the LA comply with the regs). The LA has the power to trace through DCI, (the 'main' DWP computer system, available to LA's as part of RATs). Have they invited a new claim/requested information to enable u/e to be calculated. If not, they are again not acting 'reasonably' and indeed possibly irrationally both of which are again grounds for JR.

Even if more than a month has passed since the date of the LA decision to recover from you has passed, I think it is very likely that a late appeal would be accepted, (by TAS if not the LA), as you can cite the confusion surrounding Landlord appeal rights for the delay in making the appeal, (I dare anyone to say that they understood CH/5216/2001 in it's entirety the very first time they read it).

Therefore and from the contents of your post, I would say that you have at least a better than average chance of success in making an appeal.

Thanks for your reply.

The LA has tried to contact the claimant. She is no longer on IS/JSA (that is the cause of the op). She has moved at least twice, since the op occurred, possibly out of this LA area. They have also asked her to provide information about her income during the time, but she did not respond (possibly because she had already moved)

The Local Authority do not automatically recover from the landlord, so we cannot use that arguement. They ahve given us a short statement of reasons - that her Income Support stopped and the calculations of the overpayment.

I am still finding it difficult to see our grounds for appeal. I dont think its reasonable because it wasnt our fault, but is that enough!

The short answer to you question is 'it could be' ... the longer answer follows....

'Reasonableness' is at the heart of CH/5216 and landlord appeal rights, and that reasonableness is also at the heart of JR proceedings...

You have said how the LA has sought to trace the claimant and from what I can see they have been very reasonable in their actions. I am therefore having difficulty in interpreting what you are saying...

Your post seems to agree that the LA has been reasonable in tracing the claimant (your tenant), but you think that the recovery from you is not reasonable? As the payee, the law says you are a target for recovery, unless the LA is not acting 'reasonably' (it's a bit more complicated than that, but this is a very shorthand way to look at CH/5216).

If you accept that the LA has done all it can, then I am afraid you are faced with the re-payment of the O/P. If you do not accept the LA has done all it can, you can challenge:

1. The steps that the LA has taken to trace your tenant through DCI etc (my guess is that they won't have done that on RATs let alone DCI), and whether they have asked her about the delay in informing of change in circs or 'misrepresenting' her situation to the LA DWP etc.

2. Depending on the above, you can challenge the target for recovery, (it would be fairer to target the person who caused the O/P, your tenant, as per HB reg 101 (2) (a) which specifically allows LA's the discretion to recovery from any person "who misrepresented or failed to disclose", if the LA has not considered that, the target for recovery is appealable as per "Wednesbury" reasonableness, (and fettering of discretion), both of which are grounds for JR.

3. In deciding the amount of recoverable O/P the LA must have tried to calculate U/E (bearing in mind that U/E is not discretionary), (again making the issue at point 1 above so much stronger that the LA will have to prove it's actions are not just reasonable, but can be evidenced as reasonable (screen printouts from DCI, and the IS/JSA systems etc).

It matters not a jot the reason for the O/P (whether IS ended, or your tenant died, or went abroad after winning the lottery). The LA must address (in a 'statement of reasons' if it likes), whether and if so how they have addressed the three points above. However, I think that if your only argument is that recovery from you is not fair, because you were not aware that an O/P was occurring, and the LA has otherwise been completely reasonable in all respects and all it's actions, any appeal you might make is in my humble opinion, likely to fail... sorry...

The problem I think that you and perhaps many RSL's are having is that CH/5216 is a complicated decision, and to fully comprehend it, you have to be completely aware of JR and what/when/how JR grounds can be brought and succeed this is not just a problem for you, but every person who for one reason or another, did something so terrible in a former life, that they now have an involvement with HB personally or professionally, (if only I paid more attention at woodwork)...

Findlay has a fairly good overview of JR. Basicallly there are grounds for JR if the decisioni s erroneous in law. Commisioners Decisions R(A)1/72 and R(A)1/73 both contain a simple list of matters that can amount to errors of law in decisions.

Inadquate reasons for a decision amounts to an error of law ( and so is a JR ground) which may be sufficient to win an appeal of this nature at a Tribunal

If you read CH/5216/2001 you get the feeling the Tribunal of Commissioners were wriggling in the face of the scale of possibilities offered by the earlier Court of Appeal case (Chiltern), so far as challenging recoverability decisions. 5216 resists the idea of challenges based purely on the merits of choice in discretion cases, but at the same time espouses the view that JR criteria are the way forward. Well, fettering discretion is a ground for bringing a JR. In my view, Chiltern is potentially a bigger, and more useful stick, than 5216 (and the other cases). 5216 is ultimately only one interpretation of the Court of Appeal decision.

The DWP Housing Benefit Overpayment Guidance Manual is also useful
(www.dwp.gov.uk/housingbenefit/manuals/overpay). Here is a little excerpt:

“4.01 You may recover an overpayment from a landlord when the overpayment was paid directly to that landlord, ie the landlord received the payments. An LA, in exercising its choice of who to recover the overpayment from, must act reasonably and take into account all relevant factors.”

“4.03…Note: It is unlawful to apply blanket policies such as always recovering from landlords.(note – the Guidance puts this sentence in bold!)

“4.04 An LA must not attempt to recover an overpayment from a joint tenant, unless that joint tenant is
• also a partner of a claimant and regulation 101 (4) applies, or
• the person to whom benefit was paid
Note: Decisions on whom to recover from as stated above, are at the LAs discretion. However when making such decisions an LA should only consider recovery from a landlord when an overpayment has occurred due to issues that they could know about, such as
• decreases in rent charged
• changes to tenancy agreements
• moving from one room to another in a HMO (House in Multiple Occupation)
• termination of a tenancy/occupation of property
• if a landlord is resident in the property, such changes as the customer/partner starting work
4.05 For overpayments that occur due to a change in the claimant's, or their family's, circumstances, that are 'personal', it is less likely that a landlord could be expected to know that the direct payments they were receiving were in fact incorrect. Therefore it would be more prudent in these circumstances to recover from the claimant.”.

Irrespective of the outcome of this case, it may be worth asking the local authority what (in the last 12 months) is the percentage of cases where it has sought to pursue the claimant, rather than the available landlord. I bet you a bottle of chilled Laurent Perrier they will say the data is not collected/not available. If you think discretion is being fettered, you can puff and blow about a JR, and/or think about launching a LA Ombudsman case.

You must be a “person affected” to consider the Tribunal as a remedy (assuming you are in time). This is probably ok if the local authority is pursuing you via the “blameless tenant” route.

It’s interesting how RSLs generally seem to allow themselves to become vulnerable to HB overpayment recoveries. Not just by ignoring the possibilities offered by Reg 101(1) on a procedural level, but also by an almost stoic acceptance of them as legitimate recovery targets. Good luck to you in resisting any recovery!

Steve

Thanks for all the advice. I have lodged an appeal on the grounds that they did not take reasonable steps to trace the tenant, to calculate underlying entitlement etc. I ahve asked them to provide their submission as to how they have tried to get this information, then I will argue the case more thoroughly.

Thanks again

Glad to assist, on a final point and whilst I remember it, if the LA tries to take issues of Wednesbury reasonableness out of the Tribunals hands (perhaps restricting to just what has been said in CH/5216) make sure that you have a copy of R(IS) 26/95 which confirms that 'Wednesbury Reasonableness' in all decision making areas is open to challenge/scrutiny by a Tribunal....

Good Luck....

It a Tribunal of Commissioners decision and as such was bound to be longer than usual but its 67 pages long.

Include it in your submission and the LA might be so intimidated by it they might just back down!!!!!!!

The district Chair (Richard Poynter) has recently lifted the stay on 3 of our overpayment appeals.

He has Circulated copies of the Chiltern case (now reported as R(H)2/03) and CH5216/2001 (now reoported as R(H)3/04) to al three parties with directions in line with R(H)3/04.

He has directed that further written submissions are to be provided within 6 weeks and the cases listed as special to be heard by him or by Ms Wood or Ms Lock on the same day.