Hello all

Housing Benefit are persuing one of my client's for a alleged housing benefit overpayment, but they have not been able to supply the dates of the overpayment, just the actioned date, despite the fact that I have reminded them of their obligation to do this under 2002 D&A regs.

I understand that this may mean that they have not Justifyed the overpayment and therefore cannot legally demand payment. Is this correct, does anyone know what legislation this may be covered under.

When was the decision actually made? I assume this is the actioned date.

It seems to me that in order to ask for repayment of Housing Benefit the LA would have to say.
1. This is (these are) the periods in question
2. This is what we paid you.
3. This is how we caluculate what we should have paid you.
4. This is what we should have paid you.
5. This is what you have been overpaid (2 - 4)
6. This is (these are) the things which make the overpayment recoverable.

You might wish to ask them what they say about these items.
Philip Boyd

This is why the decision date is important.

In my experiance, these issues often come up some years after the decision was made.

I.E The decision is made in 2002 and decision letters sent out.
No appeal is received but, for a number of reasons the LA does not get around to seeking recovery of the overpayment for some time.

Then in 2007 the LA change recovery procedures and start to chase up these old debts. At this stage the claimant seeks advice from an advisor but, in the meantime, the old HB papers have been destroyed due to Data Protection.

There are a number of potential issues;
Is there still a right of appeal? No, not unless you can show the letters were not compliant.

Can the LA recover in the courts? Probably not, the court requires copies of the letters that dont exist anymore.

Can the OP be recovered from ongoing entitlement? Probably.

Should the LA be able to provide a written statementy of reasons? Yes they should but clerarly can't in this case.

If they cant provide a SOR does this mean the overpayment is not recoverable? No, not in itself, but the Ombudsman might consider tghe writing off of the overpayment a reasonable comnpensation for the Las failiur to be able to provide an SOR. This depends on a lot of factors of course.

Wow…sorry for all the spelling mistakes in the last post.

Hello all

Thanks for all your help, seemed to have started some discussions.

Perhaps fuller details would have helped. HB were deducting OP from clients HB claim until 2005, then deductions stopped although client's HB claim contiuned, the HB dept seemed to have forgotten about this until this year, when the client's property was transfered to another social landlord.

The reason for the question was, that last year, I had a tribunal for a HB overpayment for another client which I was challenging on another reason, before I could present my case the tribunal chair said that the HB debt had not given dates for the OP, and therefore it had not been justified and therefore she awarded in favour of the client. So there must be something out there in HB legislation land about dates and HB right to recovery.

To answer other queries raised, the only information I have received from HB is that the OP was actioned in 1999 (no specific date given), and that they stopped direct deductions in 2005 but did not know why. The client insists he has never been sent anything about an OP, and as was working part time during time when deductions were allegedly being made, just assumed that he had a HB shortfall because of his wages. I only have HB word that deductions were being made until 2005 from his claim for the OP as the client does not have paperwork going back this far, so it's possible that even this is incorrect.

Anyway, this is obviously not as set in HB legislation concrete as I thought. So will pursue complaint on grounds that not been able to supply dates, and late appeal, on grounds that have never informed client of OP. Looks as if I will have to consider this a long shot, taking on board the 2007 changes, and other advice given here. thanks for all your help anyway.

Sch 9 of the current HB Regulations provides for what is to be included in a decision notice. (This was previously Sch 6 of the 1987 Regulations)

One of the matters to be included is the amount of any deduction from ongoing HB

You do not say whether or not the benefit was paid directly to the landlord but if it was its arguable that the decision must be in the format of a single recoverability decision as is required by the Tribunal of Commissioners decision R(H)6/06 as the Commissioners decision is a statement of the law as it has always been.

Mr Commssioner Mesher said recently in CH/3744/2006 at para 33

"I confirm that in order for an overpayment to be recoverable from any person under S75(1) a decision must be made to that effect which meets the conditions laid down in paragraph 60 of R(H)6/06"

I would argue that as the Council cannot produce evidence that the decisons were validly notified, appeal rights will remain in force (see the decision of the late Ms Commissioner Fellner CH/1129/2004, and also CP/4479/2000).

The Council cannot hide behind the DPA as an excuse for disposing of data that is still relevant to a live case. Indeed to do so could be a breach of the very DPA they may use to justify their actions.

They could be held liable for negligent destruction of data contrary to Sch1(7) of the Act

For the sake of completeness and to anticipate any arguments the LA might come up with you might wish to read CH 1395 2006.

I don't think the LAs position in respect of Data Protection is as weak is is being suggested.

From an information Commissioner's decision. Admittedly this was about FOI rather DP but the principal is the same.


Reference: FS50155312
Whilst the guide does not specify retention periods it does state that it is for each organisation to determine this. TPS have explained that the maximum time limit for review and appeal is 13 months and 14 days so as a general rule it retains information for 14 months. However, TPS have also explained that its computer records of payment history are weeded after two years on a rolling basis.

39. The Commissioner is satisfied that at the time of the request there was no clerical record of payments as all this information was recorded on PCPS. The Commissioner also accepts that if computer records of the payment history are weeded after two years on a rolling basis, then in October 2006 TPS would not have held a record of the payment history prior to August 2004. The Commissioner considers the fact that the payment history held at the time of the request dated back to August 2004 demonstrates that the weeding does not take place systematically every month but this does not alter that fact that it is reasonable to reach the conclusion that at the time the request was made the payment history prior to August 2004 would not have been held.

I can understand that on a 'dead' overpayment where it has bee repaid or written off. I can't understand it for one that is outstanding.

It seems to me if you don't keep the evidence than you can't prove your debt and you can't recover.

I've got unpaid fees going back years and you can be sure the evidence of those won't get weeded this side of Armageddon!

Philip Boyd

I think the argument is that once the decision has been made and the 13 month appeal time limit has expired there is no challenge to your decision and there is no need to retain the evidence any more.

I must admit that at my LA we do keep computer records for 10 years as without them you cannot provide an SOR, but we have had guidance from both the Audit Commision and the DPR that records could reasonably be destroyed after 6 years at most. All paper records over 6 years old have been destroyed.

I can't find ch 3744 2006 on the commissioners web site. Any idea where I can find it?

I have emailed a copy to rightsnet

cheers stainsby ... here you go ...

http://www.rightsnet.org.uk/pdfs/ch_3744_2006.doc