Hello,
In a good cause for late claim appeal hearing part of the period being looked at was actually covered by an overpayment.

It was argued that as HB was actually paid for this period the correct approach was to ensure that the underlying entitlement had been correctly calculated rather than look at any issue if good cause as such. The HB office claim to have looked into this but did not make an offset as the claimant had not got back to them in time with their correct income for the period so the issue was suspended for failure to comply with a request for information. Can they do this?

How does a duty to disclose details (from the Decision Making and Appeals Regulations)square with the seeming requirement to always deduct any underlying entitlement from an overpayment in Regulation 104 (and in R(H)5/04)?

Any help would be much appreciated. Thanks.

This could be a fun thread....

I hold a minority view of precisely two (myself and one other).

My view is that IF the LA has properly administered the claim, the overpayment decision can be deemed "final". The LA will need to have done the following:

1) identified a change in circs

2) invited the clmt to provide info / evidence

3) applied u/lying entitlement

4) made decision / notified clmt.


The problem potentially lies in "2" & "3". If the clmt fails to respond to reasonable requests for info etc within time limits for providing such info, my view is that the LA is quite within its rights to draw an adverse inference about the clmt's circs. Again, in my view, R(H) 3/05 is applicable not only to new claims, but can also be applied to "on-going" claims where a clmt doesn't provide the info.

Once the LA has made a "final" decision, the clmt has the right to ask for a reconsideration, or, appeal. If, at that time, the clmt provides the info in question, the LA has a choice - it can revise, or it can uphold the original decision. Both decisions can be argued legally. If the clmt has still not provided the info, then it is much simpler - the LA decision should stand (the onus is on the clmt to provide info for u/lying entitlement).

It is a common misconception that HBR 104 is "timeless". But, as I'm in a minority, this aspect will probably end up at Commissioners again.

I fully expect there to be other posts offering counter arguments to the above view. The success of those arguments will depend very much as to how "on-the-ball" the LA is.

Regards