Client was overpaid HB and CTB when her Incapacity Benefit went up from lower short term to higher short term rate. The benefit office were told months ahead by the DWP that client's benefit would go up, and when, but they did not act on the info and benefit was overpaid for several months. I have argued that the overpayment should not be recovered because it is the council's error. They say it will be recovered because SHE should have told them about her increase in income. They say she has contributed to the error.
Please can someone advise on appealing? Surely if they had the information they needed and did not act on it, it is their mistake.

Hi there,

I'm afraid your client will probably end up repaying this - the council are correct that the fact they may have heard about the change from another source does not remove the duty if the claimant to notify them.

They are also correct that an "official error" overpayment is still recoverable if the claimant or the person receiving the HB could reasonably be expected to be aware that they were being overpaid, and they can probably make that case here, from what you've said.

CH 687 2006 would appear to support the Council concerned's position

I find that there was no need for the Council in April 2003 to make further inquiries into the IB of the claimant’s partner and the fact that it did not do so was not a “mistake” or “official error” for the purposes of regulation 99. The Council had all the information it needed to make an award of benefit and was not obliged to speculate as to what the income of the her partner might be in the future. His future income would depend on factors outside the Council’s knowledge and control, including whether he might become capable of work . The Council was entitled to assume that if his income changed in the future it would be notified in accordance with the requirement imposed on the claimant by regulation 75 (1). The fact that, as the tribunal subsequently found, the claimant did not know that her partner’s IB increased in July 2003 does not invalidate this assumption. The position facing the Council in April 2003 fell well short, in my judgement, of circumstances where it was clear and obvious that further inquiries are required. To the limited extent that the deputy Commissioner’s decision in CH/530/2006 is relevant, the factual circumstances with which he was concerned are plainly distinguishable in that there it was predictable that the claimant’s income would fall because it was dependant on one known fact - the date of his son’s birthday – but here the partner’s future income was not predictable because it depended on unknown factors.

They had the information needed, so could have acted upon it. It is not the same as someone not telling them about a payrise, which they cannot know about until the claimant tells them.

I suspect the LA would argue, supported by CH/687/2006, that the figures notified by the DWP some time in advance were just one of the possibilities of how your clients income could change. Another alternative could be that her incap would stop as she could become capable of work.

It would be useful for the sake of clarification to unpick some of the issues here. First, as indicated there is a duty to disclose. Second, HB overpayments have no equivalent to DWP overpayments recoverable under section 71 of the Administration Act where, even where there has been a failure to disclose, there may be no recovery if the failure to disclose was not the cause of the overpayment.

Third, as indicated, HB overpayments arising from official error can be recovered from the claimant, so the fact that the authority did not act on information it held is not determinative.

However, an argument can be put (and it is certainly worth trying - depending on other facts) that the claimant reasonably believed that he was not being overpaid as the authority had all the relevant details and carried on paying him benefit. He therefore believed that the authority knew what it was doing and had calculated benefit correctly.

I did say, “ depending on other facts”. Did the claimant know that the authority had the relevant information? If so then should the claimant have made further enquiries to the authority to see if they had acted on the information?

If the claimant did not know that the authority had the information then it is a reasonable argument that the claimant should have known that an increase in his income would have affected his HB and therefore it may be reasonable for him to believe that he was being overpaid.

I don’t know enough about the facts of this case to reach a conclusion one way or the other but I would certainly give enough attention to a case like this to try and make an argument. It may be, in the final analysis that the arguments on behalf of the claimant are weak but the claimant certainly has nothing to lose by those arguments being put.

I will try and find out more. My client has mental health problems and can't cope with paperwork. Thank you all for your comments!

Hi
I would be grateful if you could look at my post dated 25/09/07
thanks Caroline

here is the link to caroline's 25/09/07 posting -

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=5485&mesg_id=5485&page=

I would argue the point that the claimant could not reasonably be expected to know that she also had to inform the Housing Benefits team. Given her mental health problems she could argue that she was under the impression that the DWP would inform, or the Housing Benefits team could realistically know. Additionally you could argue that the difficulty the claimant had in accessing advice centre services could have made it unreasonable for her to get clarification on this point.

To be honest much will depend on the discretion of the LA here, but with GP or other proffessional evidence you may be able to convince them not to reccover it.

Your case might be distinguishable from CH 687/06 if the IB award took account of foreseeable changes ie the change from short term to long term, in advance of the change, and if the notification was provided to the LA. (IS notifications take account of known changes a long time in advance, but i'm not sure about IB notices - i think they do award the increase to long term in advance, but not entirely sure.)

HB awards also take account of known future changes in income, and if they received information with the claim that a person's income consisted in IB of £xxx increasing on (future date) to £yyyy, the award details are relevant facts, which should be reflected in the HB award. imo it would be an official error if they had the information but omitted to use it in the assessment, which is what you suggest.

she would still have to show that she did not know she was being overpaid, but if you are able to establish that it was O/E, that task is a little easier...

re-reading your posts, you seem pretty definite that the LA _did_ have the information about the change in rate at the outset.

i respectfully disagree with jim that the quoted decision supports the LA - the argument there was concerned with whether the LA should make enquiries when they could be expected to know a change would occur - the commissioner did not accept this.

if the facts of the award were provided to the LA and it ignored them, and if such action is routinely not considered to an official error, it seems to me that the verification procedure is reduced to a process to deter and stress claimants, and not a genuine attempt to prevent overpayments.