Fri 05-Sep-08 03:11 PM by laura

I have a client who had a Housing Benefit overpayment in 2003.
In 2007 she was underpaid housing benefit, once this was reassessed and a correct calculation made the underpayment was used to offset the pre-existing overpayment.

This is causing the client sever hardship and the landlord is applying for a possession order and it is likely our client will be evicted.

Can the local authority offset and underpayment in this way?

Reg 101(1) allows recovery to be made from arrears of benefit and Reg 101(2) does not put any limit on the rate of recovery, although Reg 101(5) will leave the claiamnt with a minmum payment of 50p per week, so the short answer is yes, the Council can legally offset.

You need to look first of all at the reason for the overpayment. If it was caused by the Council's own errors or delay, then I would argue that the Council should not profit from its own maladministration.

You may have grounds for a complaint to the Ombudsman if maladministration can be shown.

Was the overpaid HB paid direct to the landlord? If it was then you could argue that the parties were not properly notified given that LA's at the time did not comply with the rules as set out at para 60 of the Tribunal of Commissiioners decison R(H)6/06and so to date there was and still is no overpayment that is legally recoverable from anyone. It will give you a basis for an appeal (it will be still on time given that time limits only start from the date the parties are properly notifice (see CP/4479/200, CH/1129/2004.

I have used this tactic a number of times in order to get old overpayments revisited (and some written off)

The case that HB can do this does not mean that they have to.

Each Local Authority must by law produce a "Homelessness Strategy" document... check your to see if the HB have signed up to it. They should not be creating a situation which causes homelessness.

My LA would not take back a whole OP from 2003 with arrears of entitlement arising from a claim in 2007. The view here is that you cannot actually offset like that unless the OP and UP are in respect of the same period (though admittedly I am not sure what the legislative authority is for that now!)

But in any event I would echo Nick's point about the potential hardship and homelessness which could arise in these cases, particularly as I know that these "offsets" will often occur with no warning and leave the claimant without the several weeks of arrears of benefit they were assured would coming by the hard-pressed assessor who hadn't noticed what the computer system was about to do!

I would argue that it would be fairer to offset the OP with the weekly statutory OP deduction multiplied by the number of weeks of entitlement due on the latest claim and continue to recover in that way from the ongoing entitlement. LA is getting its money back and the hardship to the claimant is mitigated as much as possible.