Have a client who is curently having an O/P recovered from ongoing entitlement under reg 102.

LA suspends the claim pending an income detail check. The claim is later de-suspended (no amendment to claim) - which creates a benefit credit (of entitlement during the period of suspension).
The LA then takes the whole of this benefit credit in offset against the original O/P.

This has had the effect of undermining the restrictions on recovery in reg 102.

I am complaining (loudly) to the LA on the moral case and asking for resons for the decisions.

I cannot see any grounds in reg 102 for an appeal.

Can anyone suggest a regulation or guidance which would stop an LA suspending a claim ( or prevent them from stringing out a suspension)and grabbing all entitlement during the period of suspension?

I dont see how they can suspend pending an income check, they can only suspend if the claimant has failed to comply wtih an information requirement or if a specific issue has arisen as to the claimants entitilement or whether there is a possibility of revision or supersession that would result in reduction of or termination of entitlement (D&A Regs 11 and 13)

As there was no amendment of the claim, it looks as if the LA had no evidence to justify suspension, ( the rules of decision making would put the burden of proof squarely on the LA to prove its case.)

At a minimum I would be complaining to the Ombudsman, and you may well have a case for suing for restitution in the County Court following Waveney DC v Jones if you can show that the suspension was not justified and so the LA could not justify creating the arrears of benefit.

As for stringing out suspensions, I find that a JR pre action protocol letter often works wonders and the suspension often ends very quickly after the LA gets the letter

Isn't there an argument that they had advised the client they would be deducting in set instalments from future HB (it sounds like) and haven't kept to this? Seems a farce if they say they will deduct at a set rate and then increase that without notice (tho I accept they could deduct the ongoing recovery amount)!

Can't find any regs re:this but CPAG page 1151 states methods of recovery should be consistent between different groups of claimants. Presumably they should also be consistent with that claimant?

I feel that there's more I know on this but can't remember any client names to look in files - will let you know if I remember..

Mairi

they don't have any legal authority to offset against the 'arrears' due to your client, and they are abusing their power.

a practice of suspensing payments to build up 'arrears' which are then deducted from outstanding recoverable overpayments is not authorised in the regulations and is unlawful.

you could request an explanation of the decision citing the relevant legal authority - offsets are covered by reg 97 - it does not work in the way your LA is applying it, and you have a right of appeal.
alternatively, just write to them pointing to the regs, and request a revision on error in law grounds and to cough up.

You could point them to the HB/CTB Overpayment Guidance Manual.

4.51 An LA may recover a recoverable overpayment from arrears of HB (Reg 102 applies).

4.52 'Arrears' means any entitlement which is payable after an LA has revised a decision and concluded that, for whatever reason, it has been underpaying a particular claimant. In other words, any overpayment may be recovered from the arrears that are payable to the claimant from the increased amount owed in light of the revision.

Example
Mr X is entitled to HB of £35.00 per week.
He informs the LA that his wages have decreased on 3rd August 2004.
The LA fails to action this change until 16th September 2004.
The resulting assessment means Mr X is now entitled to £40.00 per week (arrears owed to Mr X are 6 weeks x £5.00 = £30.00)
As Mr X has an ongoing overpayment that is being deducted from his continuing HB at a rate of £8.40, it is possible to ‘use’ the whole of the £30.00 arrears to reduce his overpayment, in one lump sum.


4.53-4.69

Delays in processing new claims
4.70 A delay in processing a claim at a new address, and the resulting payment due to the claimant, does not constitute arrears in the sense that an LA can use all of this money to reduce any overpayment that the claimant may have.

4.71 Although recovery can be made from the ‘bulk payment’ that is due, any recovery is subject to the ‘maximum deductions’ rules, ie you cannot use the whole of the ‘bulk payment’ to reduce the overpayment, you must only take a maximum of £8.40/£11.20 for each week of the payment due.

Example
Miss Y has an overpayment of £300 from a previous claim, which the LA has been unsuccessful at recovering.
She reapplies for HB at a new address on 3rd September 2004.
The LA fails to process this claim until 7th October 2004 when they decide she is entitled to £40.00 per week.
She is due to be paid for 6th September to 10th October, ie five weeks @ £40.00 per week = £200.00
As the original overpayment was not fraudulent, recovery will be at the standard rate of £8.40. The LA can deduct five weeks at £8.40 from the first payment of £200.00 due to Miss Y, to reduce her overpayment accordingly.



(In the Local Authorities defence, it may be a problem with their software which has caused the overpayment to be recovered in this manner and it may not have been a deliberate intention on their part).

thanks, - i'm glad the 'delay in processing' arrears point is cleared up, but i'm a bit doubtful about the guidance, and the first example you quote. i've looked at regs 97, 102 and 104 and can't quite see how recovery by offsetting from future arrears, ie after the determination in reg 104 is made, is authorised. reg 102 is quoted but that reg basically empowers recovery by deduction from current HB entitlement, and offsets at at the determination stage (via 97 and 104), and limits the amount of the deduction. in the above example a deduction of the maximum amount is already being made, so i'm not clear how the fiver a week arrears authorised. i'd be pleased if someone could explain it to me...

i'm sure you're right about the software, but it's not the whole of the problem.

jj

Thanks to everybody for their response suggestions. I did complain to the LA an this is their response:

"In summary, we carried out a VF check on Mr XXXXX’s claim. The notification from DWP raised questions about Mr X’s income. We wrote to the DWP for clarification, and correctly suspended Mr XXXXX claim.
When DWP responded, we desuspended his claim.
Unfortunately, the benefits system saw fit to offset the overpayment against the suspended payment, and pay nothing at all for the period preceding the desuspension. This seems to be a system issue, and thankfully, shouldn’t happen on Academy"

They have reinstated the payments (less clawback of course).

This is of course an example of a benefit decision being made by a default administrative procedure and the LA sees nothing wrong in it.

The LA in question is moving from HBIS to Academy computer system in the next few weeks.

This is only the latest of a series of arguments I have had concerning default admin decisions. I have always felt this is against natural justice nd I have been dismayed how often CD's seem to back this approach up (see R(H)3/04). It seems that provided LA's justify a decision when challenged this is quite acceptable. The problem is what about all those cases where the claimant did not dispute and yet the LA did not consider the circumstances at all - and simply carries out a default. It has the effect of puuting the onus on the claimant to quality control the LA's processes.

Just another example of unfairness built into HB law.

"The notification from the DWP raised questions about Mr X's income"

What questions?

The vagueness of the response is very troublesome. What is more have the LA not heard of telephones? Do they not have an SLA with the DWP?

Whatever the system failures a bit of common sense from the assessor dealing with that case could have sorted it all out on the same day that the spurious DWP notice was received. All that was needed was a simple phone call to the DWP

I would still be asking for comensation for the injustice suffered

This sort of thing will become more of an issue as the drive to reduce costs in central and local government increases.

Admin decision by default come about because increased automation is the only way of processing HB and CTB within the confines of what people want to pay by way of Council Tax. (I don’t know a single Council where their costs are anywhere near covered by the admin grant so Council Tax has to pick up the slack).

It sound easy to say, “pick up the phone and call the DWP”, but it just doesn’t work.
Here in Sunny Aylesbury are nearest DWP contact centre is Portsmouth and they have a 5 week backlog and just cannot meet the SLA provisions.

The reason for the move of contact centre and staff reductions being, of course, to reduce costs.

I am not pretending that all poor administration in HB/CTB is a result of people being unwilling to pay a decent level of Council Tax, but it doesn’t help.

lol! i see a number of problems with the view that the fault lies with the software, the DWP and the reluctant council tax payer...but before i can even move onto the really serious problem of willy nilly suspensions at the drop of a hat, which are increasingly troublesome, i'm having a real problem with the interpretation of reg 102 with regard to recovery from arrears.

i'm hoping someone can help me to move on...

reg 102 was replaced by a new version, which includes the problematic parenthesis (including arrears of entitlement after offsetting under regulation 97) effective from 2/10/00 by SI 2331 and originally said little more than overpayments can be recovered from housing benefit entitlement.

there is nothing in the explanatory notes referring to recovery from arrears payments - the link to the SI and notes -
http://www.dwp.gov.uk/hbctb/circulars/2000/a42-2000.pdf

DWP guidance from the Adelphi in HB/CTB circular A42/2000 was issued - the thrust was that it was largely a 'tidying -up' exercise addressing two main areas, a legal anomaly preventing offsetting for underlying entitlement, and LA discretion to decide the levels of deductions from HB for o/p recovery. Reg. 102 is explained over 6 paragraphs and nothing whatsoever is said about any power to deduct recoverable overpayments from any HB arrears arising ever after until the o/p is cleared, and i find that a very strange omission if it were the case that such powers of recovery had been introduced by the SI.

para 3, on the background says the DWP "has looked to ensure that there is equitable and fair treatment of all claimants, and that the principles underpinning the overpayments legislation for housing benefit and council tax benefit are the same as for other means-tested benefits, such as income support."

swallowing up HB arrears because of overpayments does happen, and _does_ appear to be a software thingy, and it definitely causes hardship - people have often borrowed money or found rent payments out of benefit which doesn't cover rent. offsets of arrears against IS overpayments is very limited, and the general rule of offsetting is that it applies to a common period.

although i am not 100% certain what reg 102 means with regard to recovery from arrears, i would be very surprised if it offers the LA unrestrained powers of recovery from arrears, and would expect it not to stand alone, but be read in conjunction with reg 97, which is in the brackets with arrears in para 1, and regs 104 and 98, which reg 97 refers to. if arrears are recovered against an outstanding overpayment, this has to be an offset, which on my understanding gives a much-needed right of appeal - much-needed because the calculation of offsets is so prone to error! if 102 is read as a stand-alone reg, it not only negates reg 97 (2), which must be there for a purpose, (and the PODOP regs have a corresponding clause, btw), but also denies appeal rights if reg 102 is held not to carry appeal rights, which i think is the position.

i couldn't find out when the overpayment recovery guide replaced the section in the HB manual, but imo the guidance is teh suq, and could easily mislead LA staff, making it much more difficult to counter any deficiencies in the software.

the commentary in the CPAG handbook however, may appear to support the interpretation allowing recovery from arrears...but i remain unsure why... can anyone clarify please?

jj

ps - the link above is to the HB circ. with the SI and notes attached as an annex - got my links mixed there...