Hi all,

I have a current HBOP case and I want explore and confirm my options.

Case: We received a notification stating claimant left property March 04! Obviously now a substantial HBOP has occurred. We received continuous HB for the tenant during the overpayment period till now! The LA has sent a statement of reasons outlining that the claimants son informed them only recently that the claimant moved into hospital in March 04.

During the HBOP period we received no contact from the tenant, or payments of rent to the rent account other than HB which would have indicated to us that a change in circ's or that the tenant left the property.

I know the council will reply with "you received the HB so under HB Reg 101(1)b the LA can recovery HBOP to whom it was paid".
I will respond with unaware of tenants circ's so unreasonable that we could of known tenant's personal circ's or that HBOP occurring and tenant should have notified LA of change in circs at the point of the change.

This will obviously be the basis of the appeal also as our records have no indication of change.

What other possible outcomes and basis of appeal's do i have as this seems to be the only road at the moment?

Reference the move to Hospital - what sort of hospital (regular NHS - Nursing home ?)and was this intended to be a permanent move from the beginning, ie, his medical condition was such that it precluded him from ever returning or was there an intention to return home?

On the statement of reasons from the LA they state "taken into hospital". As we were completely unaware of the move there could have been an intention to return. However, he has not returned since and we are treating this as an abandonment. We are also completely unaware of the tenant's medical condition. This obviously means we were shocked at the HB stop notification and the HBOP notification.

We have a higher percentage than most of elderly and therefore come across this reasonably often.

The reason I ask is because the rules changed last April - since then benefits remain unaffected by a stay in hospital not exceeding 52 weeks (with the exception of AA/DLA) if the claimant intended at the time of admission to return home as and when he was fit enough to.
(HBR 18 & CTBR 10) (HBR 5(7A)-(9) CTBR 4C

This client has obviously been quite ill, and as sometimes happens, after consulting with Social worker/family members etc, client may have subsequently decided that he/she cannot return home as they would no longer be able to cope - ie - would not be safe etc.

It should be at that point that the required notice should be given to the landlord and the HB section notified.

I assume that the HB section have made enquiries already, but it would be helpful to yourselves to get the full story from either the client or the family.

To justify their backdating case, the LA will have to show that the client never had any intention of returning home - the mere fact that he may have been too ill to do so for the intervening 12 months is immaterial.

Thank you mike, most helpful. So just to clarify, I could now state to the LA that the tenant may have had an intention to return however, now it seems that the tenant cannot return as they are unable to do so due to illness. Therefore HB should be paid under these terms.

Due you think this route would be easier than going for appeal against recovery?

Providing you can substantiate the fact that the tenant had every intention to return when able to - ie, by talking to him personally, or to the family. Better still, get it in writing. Don't forget though, it's what his intentions were, not the opinion of the family/Social worker as to what was good for him.

You could mention to the family that if the recovery is effected from yourselves, then you naturally would have no choice but to seek repayment of the outstanding rent from the client.

Armed with that, you can then talk to the LA, requesting that they revise the O/P decision forthwith on the grounds that they wrongly applied the law.

I don't think you can now argue that the claimant had an intention to return, if it is clear that no intention now exists... (even if it previously existed)...

The HB guidance manual at Ch C, para 3.194 states "Similarly, if during the course of an absence it becomes clear that it will probably last longer than 13 weeks, stop the benefit immediately, unless the reason for absence changes to one covered by the 52 weeks rule, see The 52 week limit later in this chapter".

Link to this part of the guidance is below...

http://www.dwp.gov.uk/housingbenefit/manuals/hbgm/parts/pta_03c.asp#g

I think that challenging the 'target' for recovery is your best bet, but I have to confess, I would not be optimistic about your chances... the O/P seems to be covered by HB reg 99 (1), not 99 (2), so it is recoverable, (the overpayment is 'bound' to have a small LA error part to it, (it is unlikely that the O/P will have been created within days of the LA receiving the notification of change in circs), so you could attack that... Sorry for the bad news, I could be wrong though...

P.S. What about a request for a 'discretionary write off', if done to the HB Manager, then perhaps through a Cllr if unsuccessful, it might stand some chance too???

Unfortunately I have already gone down the route of intention to return, we still have had no contact from the tenant with regards to details of him leaving to hospital.

"As the claimant still retains the keys to the property, can we bring to your attention HB Reg 18, the claimant is hospital receiving medical care, and therefore housing benefit remains unaffected and can be paid for a period of up to 52 weeks. Under HB Reg 5(8), housing benefit can be paid for a period of 52 weeks when in hospital and that there is an intention to return to the property."

But we would still have a basis of appeal with not knowning the tenants personal circumstances during the overpayment period. I have found that this route sometimes come in use as the LA would not reasonably have expected us to know them. Therefore deem the recovery unreasonable from the landlord.

March 2004 was the date of admission to hospital.
it isn't evidence that the person did not intend to return home, so that reg 5 no longer applies.

it is very rare for someone to decide that they will not return home on the date they enter hospital, and when someone is seriously ill, there may be a lengthy period in which it isn't known how the illness will resolve. a wait and see period, with no decision made until later.

if a point is reached where it is clear that the person cannot live on their own, or will require nursing care permanently, it may still be a difficult decision to make, with alternative options being explored. (case conferences, family discussions). residential care is most often the option of last resort, with the decision resisted for a time. it could be that your client has gone to live with a relative, of course. i doubt the decision was made on his admission to hospital.

the LA is demanding the repayment of an overpayment calculated from the date of admission to hospital, and the onus is on the LA to show that an overpayment has actually occurred. they need evidence that the on the date of admission the person did not intend to return home.
do they have any?

jj

Couldn't have put it better myself ..........

When you put in a request for a reconsideration of their decision, you ask for a copy of all the evidence that they have used to reach that decision - and a reference to all the regulations they are relying on.

The LA have obvious had contact with the Son - ask them to ask him to contact you - theoretically they shouldn't give you his contacts details without authority.