I have made a number of appeals against overpayments of housing benefit on behalf of the Housing Association I work for. We received a letter fro the overpayments section informing us they were recovering the overpayments form our third party payments. I called the overpayments team and stated that the decisions were under appeal and that they could not recover. They stated that they were not under appeal and only in dispute, so that they had the ability to recover. They said that until the appeals were logged by the appeal section they were not classed as appeals. I have been sending the appeal letters to the LHO as they were the ones who issued the overpayment decisions, I was originally instructed to do this rather than send them to the overpayment section. The overpayment section told me that as a further decision can be made by the LHO on the overpayment and further rights of appeal can be made on that redetermination, then the initial letter is only a dispute and does not become an appeal unless it is in relation to the redetermination decision. Now one of these appeals were made in 2001, the remainder range from 2005 onwards. Given the information from the overpayments team, the LHO never need to make a decision on the original appeal so that all the monies can be recovered. I have spoken to other colleagues and found that this is not isolated to my area, Glasgow,. My understanding is that if I state I wish to appeal then that is what I want, I have not stated that I simply want to dispute this decision.
Has anyone else came up against this and could you let me know or if you resolved it.

Thanks

Hopefully, this should assist.

Firstly, an appeal is an appeal. The reference to a document as having to be logged is rubbish - there is nothing in the DARs that say an appeal has to be "logged" to be an appeal. So long as the document makes it clear it is an APPEAL, it is an appeal as soon as it has been received by the LA. As an aside, my advice is to use the word "appeal" when you appeal with TTS in mind, and "reconsider" otherwise.

As for recovering when an appeal is on-going, it is technically not illegal. However, the Ombudsman has made it very clear that LAs should NOT be recovering if there is an outstanding appeal AND that such action will normally consitute maladministration.

There is an argument that you *may* be able to seek restitution as the matter has not reached finality - an old Stainsby favourite would be Waveney DC v JONES (1999) 33 HLR 3 CA. I think Waveney is on the Rightsnet site.

So, what to do as at now.... I would, without hesitation, write a formal letter of complaint, copying it to the LA's legal department and Ch Exec raising the following points:

1a) an appeal is an appeal - the Council has no discretion to treat it as anything else, irrespective of internal admin procedures.

1b) make it clear that you are fully aware of the distinction between an appeal and a request for reconsideration and emphasise that you are APPEALING (assuming this is what you want).

2) it is maladministration to recover while an appeal is outstanding - make it clear that the LGO has made such findings previously.

3) further point out that the LGO considers it may be maladministration if the appeal, and submission, are not sent to TTS within 28 days.

4) point out the Waveney case and make it clear (so long as you mean it - its pointless making an empty threat) that your HA will give serious consideration to seeking restitution if the LA continues to deal with appeals / overpayments in this manner.

Regards

In addition to the above, I would also make a formal request under the Freedom of Information Act for a copy of the regulations which the LA are saying supports their actions - knowing full well that they will not be able to comply - using the above Act should ensure you get a reply within 20 days (theoretically): otherwise there are some LA's who sometimes play hard to get by not replying very promptly, if at all.

Thanks for that , I worded them as appeals and not reconsiderations.

I will be on the phone to the overpayment section tomorrow armed to the teeth now. What concerns me about is that I only have knowledge of this happening because they were appeals against the landlord, as I get all the corespondence. I have made quite a number of overpayment appeals on behalf of our tenants and these are also outstanding, so I am unaware if the overpayment has been recovered in these cases, but given the statements from the OP section, I would suspect that this has happened. It looks as if someone at the overpayment section is going to have to do a lot of work looking into these cases and possibly start to make refunds

Again Thanks.

Willie Sinclair