I have a client who has an overpayment of housing benefit from 01/02. This arose as a non-dependent moved in with the client. No deduction was applied as Client was on DLA care. DLA care was stopped a couple of weeks after non-dependant moved in but the client failed to inform housing benefits. When housing benefits found out they backdated a maximum non-dependant deduction to the date DLA stopped - creating a £2000 overpayment.

The client failed to provide proof of the non-dependants income at the time. I have been in contact with the council regarding this and have been advised that client is now out of time to request that an underlying entitlement is calculated. Please can anyone advise me whether this is correct? I have only been advised over the phone by someone in their contact centre.

The council apparently did make requests for information so as to calculate the underlying entitlement but the client failed to respond.

Based on the info given, my view is that the LA advice is correct.

For underlying entitlement (or a claim), the time limits work as follows:

1) LA requests info / evidence - 1 month* or such longer period as the LA considers reasonable (*was probably 28 days at the time).

2) If the clmt failed to provide the info, the LA was entitled to make a decision based on the info it had, as well as draw inferences from the failure of the clmt to provide evidence (in this case, a higher non-dep deduction).

3) Decision made - clmt had one month in which to ask for a reconsideration, or appeal (or, if a late appeal, an absolute time limit of 13 months from the date of notification of the decision).


"Underlying entitlement" doesn't have a self-contained time limit. It isn't needed. The time limit is set by HBR 73 (as it was then) to provide evidence, then the DARs to appeal etc.

Also, based on the info given, there is no possibility of an any time revision - this can only be considered where there has been an official error.

Sorry, but I really don't think you'll get very far with this (at least not based on the info currently available).

Thank you.

I thought this was probably the case.

Housing Benefit (General) Regs 1987, reg 97 cover offsetting against a overpayment any sum deducted under reg 104 unless determined to be an overpayment under reg 98 Meaning of overpayment.

Reg 104, Sums to be deducted in calculating recoverable overpayments, is where the overpayment is reduced by any sum that should have been paid in the overpayment period on the basis of the claim as presented to the HB office.

OR
On the basis of the claim as it would have appeared had any misrepresentation or non disclosure been remedied before the decison,

OR
On the basis of the claim as it would have appeard if any change of circumstances had been notified at the time that change occured.

BUT;
No amount shall be offset which has been determined to be an overpayment within the meaning of reg 98 Meaning of overpayment. Reg 98 covers any amount which was paid and to which there was no entitlement under the HB regs.

Can your client show good cause for failing to disclose the information about the DLA stopping?

None of the above gets around the fundamental problem of time limits.

The reason(s) for failing do disclose the cessation of DLA make no difference at all - especially as it appears the LA provided the opportunity for relevant evidence to be provided at the appropriate time.

Regards

Can see kevin's reasoning but what about when the authority simply make an overpayment decision and ignores underlying entitlement - unless the claimant mentions it. Would it be an official error? and is there any time limit on bringing up underlying entitlement afterwards?

Yes, it would be LA error in that case. The LA must consider what the correct level of benefit should be (often referred to as underlying entitlement) and must give the claimant the opportunity to provide evidence.

Although Kevin is correct in all he says, the LA can, even at this late stage, retrospectively decide to extend the time limit for the claimant providing the necessary evidence. Although the LA don’t have to do this, it is often the best way forward and is a “win, win” situation. The claimant does not have to repay an overpayment and the LA gets subsidy on the amount allowed.

I note that in your original post you refer to the claimant failing to provide 'proof' of non dependant income. Was it information that was missing or is it more about how good the evidence was?

Whilst on the basis of Kevin's sequence there is perhaps little that can be done you should check the order in which things actually happened. Particularly a few years ago local authorities would make the decisions initially on the sparsest evidence and only ask for info later.

Just to throw a spanner in the works, I'm not entirely in agreement with jmembery's post .

I completely agree with the part where, if the LA has failed to administer the claim properly in relation to the original decision, that *may* amount to an "official error" for the purposes of being able to ask the LA for an "any time revision" under DAR 4(2). For completeness, DAR 4(2) is discretionary and if the Council (reasonably) refuses an any time revision, there is no right of appeal.

The bit that I'm not so convinced about is the retrospective extension of time limits to provide evidence. Even if that premise could be supported in law, how could the original decision be revised in this case, given the time that has elapsed? Um, or have I had an aberration and missed something obvious? (After all, it is late.... ).

Regards

Kevin
Could not a supercession decision be made (but with the same effective date as the origional decion) under 7(2)(b) of the D&A Regs on the basis the origional decision was made in ignorance of a meterial fact?

Jeff

I don’t think the discretionary bit (the inclusion of the term ‘may’) is much to get carried away about. Where a ground for revision is made out the authority must revise: see R(IS) 15/04. If the authority didn’t bother about underlying entitlement at the time the decision was made surely it must be official error? It isn't quite true that there is no right of appeal either, just that the right of appeal runs from the date of the original decision not from the refusal to revise so that leaves a lot of people out of time, but not everyone. Of course judicial review would still be an option.

As for providing the info there was always the “or such longer period as the relevant authority may consider reasonable”. In any case if say 3 years later a claimant asks for revision on official error for not bothering about calculating underlying entitlement before making a decision, and at that stage provides all the info needed to work the thing out I don’t see that the authority can use the reg 73 (as it was) provisions to draw adverse inferences.

Damian,

Firstly, the original post indicates that this is not a case where the LA didn't bother to ask a clmt for evidence for underlying entitlement. There are also at least 2 HB CDs where Commissioners found that the onus was on the clmt to provide the info / evidence in underlying entitlement cases.

Secondly, I disagree about appeal rights for "any-time-revisions" under DAR 4(2). It has already been ruled in Beltekian (aka R(H) 08/05 - CH/1855/2003) that there is no right of appeal against an LA's refusal to revise under DAR 4(2). The only course of action would be JR.

Thirdly, R(H) 3/05 made it clear that LAs are perfectly entitled to draw inferences where clmts fail to provide evidence. This line has been referred to, with approval, in other subsequent CDs.


NB: I'm still pondering jmembery's post...

Whilst we are on the subject of underlying entitlement. I have a similar case where an overpayment was created for the period 2001, decision notified in 2003. Two year overpayment, nearly £5000 without council tax benefit.

This was based on Income Support stopping for alleged co-hab. Both IS and HB investigated matter, interviewed client under caution. IS then took criminal action, but case dropped as CPS did not put forward any evidence. Client maintained throughout that she was not co-habiting. IS pursued civil action to recover the overpayment. Client never appealed IS overpayment, appears she sought advise in timely manner but was not advised to appeal.

HB did not start recovery until recently. I have tried to argue that client maintained underlying entitlement. She was not co-habiting, so her only income was Child Benefit, she had already provided proof of this at the time of her claim. So although she did not respond to them at the time when they invited her to provide proof of income, she had effectively already provided them with details of her income.

I have just received a reply in the middle of writing this post, and they will only consider underlying entitlement if client provides proof of partner's earnings, but she maintains she never lived with him. (intersting that they are still willing to consider underlying entitlement, and makes me wonder if they ever invited her to provide proof of income in the 1st place, surely she would be well out of time?)Anyway She pleaded not guilty at the criminal hearing and has consistently denied this throughout.

Help! Actually this case is not very similar to the above!