Some time ago we found some Housing Benefit legislation which said that for Housing Benefit purposes when a claimant is on Income Support the whole of their income is disregarded for Housing Benefit purposes. paragraph 4 Schedule 4 HB regs.

We've had some success with making the argument that if a claimant was in receipt of IS/ibJSA regardless of entitlement there wouldn't be a Housing Benefit overpayment for any period IS/ibJSA was later decided to have been overpaid.

We took this to an appeal tribunal and lost and aren't sure whether there have been any amendements to change this. Our legislation reference books are a bit out of date and we can't find up-to-date easy to read info on the internet.

It is just down to the wording of the legislation so I'm going to continue the search for the most up-to-date amendment.

Anyone any ideas whether this has been changed?

Sorry if this sounds a bit short, but the answer is pretty straight forward.

In my view (and depending on the facts of each individual case) you have been VERY fortunate to have had success in arguing that PAYMENT of IS is sufficient, regardless of ENTITLEMENT.

The provision you refer to (the '87 regs) is correct and the substance hasn't changed. However, there is caselaw that makes it clear that para , Sch 4 (and it's equivalents in other schedules) only applies if the clmt has LAWFULLY been in receipt of IS.

The legal position is best summed up in para 27 in R v South Ribble BC ex p HAMILTON (2000) Indep CA:

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27. Having considered these submissions and the authorities, my conclusion is as follows. There are two reasons why this appeal should fail. First, it accords both with commonsense and the intention and structure of the legislation, that where, as here, entitlement to housing benefit is dependent on receipt of income support, that income support must have been lawfully obtained; that is, lawfully in the sense of neither by fraud, nor dishonestly. Secondly, the principle apparent from cases such as Shah dictates that legislation should not be so construed as to enable a man to profit from his own fraud. I would therefore dismiss the appeal.
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Regards

Thanks for that - we were aware that it was a technicality but couldn't find anywhere it had been used before.

Mairi

I don’t agree with you completely on this Kevin. I completely accept your view in cases where fraud and dishonesty apply for the reason you cite. The CA reasoning was re-iterated in R(H) 1/4 were the commissioner, at para 20 states, “if the income support award has been obtained by fraud, the council can go behind it, as ‘in receipt of income support’ has been held to mean ‘lawfully in receipt of income support’: R v. South Ribble BC ex parte Hamilton (2000) 33 HLR 104”.

However, what about cases where the claimant disclosed all material facts both to the DWP and the LA and the DWP incorrectly made an award of IS. Would the claimant be entitled to rely on the (albeit wrong) award of IS to avoid recovery of overpaid HB/CTB. Quoting from the above CD: -

In R (Sier) v. Cambridge CC HBRB (2001) Latham LJ said: -

“In the present case, one has to have regard to the general legislative purpose, which seems to me to be clear. Parliament has laid down in the Regulations that a person is to be relieved of the obligation to repay an overpayment when that has been occasioned by an administrative mistake and not by any fault on the part of the recipient. That seems to me to be the basic thrust of the Regulation and one should approach the meaning of the word "cause" and its application to the facts on that basis."

Simon Brown LJ said:

"If one asks the purpose for which the question arises under regulation 99(3) as to whether the overpayment was caused by an uninduced official error, the common-sense answer is so as to distinguish that sort of case from a case where the claimant himself is substantially responsible for the overpayment."

In my view, therefore, in the example I cite, the overpayment would be caused by official error and recoverability would depend if the LA could show that it was reasonable for the claimant to realize that s/he was being overpaid.

Regards
Paul

I don't think we're so far apart on this Paul.

If there is an "official error" on the IS side, making the IS non-recoverable, then, by definition, IS would have been LAWFULLY paid (albeit incorrectly) - at least in my view. In such a situation, I think para 4, Sch 4 et al would have effect.

Regards

Yep! You're right, Kevin. We are pretty much in agreement.

Regards
Paul

We've had some success with making the argument that if a claimant was in receipt of IS/ibJSA regardless of entitlement there wouldn't be a Housing Benefit overpayment for any period IS/ibJSA was later decided to have been overpaid.

Hmmm. Like Kevin I am very surprised you had any success with this argument!

Not sure if Hamilton is directly relevant though. In Hamilton the claimant's Income Support had not been re-assessed or withdrawn throughout the period of the Housing Benefit overpayment, simply because the local authority had not passed to the DWP the information they held about the claimant's income and capital. Because it was clear that the claimant was fraudently concealing income/capital from the DWP, it was held that the authority was not bound by Schedule 4(4).

The scenario presented here is where the DWP have retrospectively re-assessed a claimant's Income Support / Job Seekers Allowance and decided there was no entitlement. I would probably argue that where that is the case, the claimant is no longer 'on' income support for that period for the purposes of Schedule 4, therefore the local authority can re-assess their entitlement based upon their actual income / capital.

Not sure I agree as well that if someone is in receipt of Income Support / JSA as a result of a DWP error and it is subsequently withdrawn that is precludes the LA from re-assessing HB/CTB. I think it is more likely that any HB/CTB overpayment as the result of the DWP error would be deemed official error and not recoverable from the claimant because they could not have realised they were being overpaid.