Client had overpayment IS (& consequent HB overpayment & CT debt) due to IS deciding she was living with her childs father the overpayment decision was appealed. Appeal was eventually found in clients favour, but on technicality as DWP didn't supply TAS with properly superseeded decision that she was living with him. This was their second bite of the cherry at appeal and the DWP have now not asked for set aside or anything.

Client has heard nothing following the appeal from IS about the overpayment, she already has another earlier overpayment coming out anyway.
I just can't get my brain around this. Surely the overpayment decision cannot stand? Or at the very least be unrecoverable?

This client has related LA overpayments and they need a new decision about the IS, or those overpayments will still stand also.

What do I do now? Can I ask IS to superseed it's earlier decision on my clients IS on the outcome of the Appeal? I'm really stuck here, and thinking myself around in circles, please can anyone help I'd really appreciate it?

The tribunal have said that as there is no evidence of the awarding decision being properly superseded, then the award effectively continues unhindered. A recoverable overpayment is on the basis that the claimant wasn't entitled, but without a proper supersession/revision to that effect, there is no overpayment.

Ordinarily, I would simply put this point to the authority - there is no ending of the IS award. However, I have a vague memory of a recent CD (sorry don't know reference) that says authorities are not bound to pay on the basis of IS where the IS was awarded incorrectly. This might mean that they can continue to revise thier decision and seek recovery.

Because the DWP didn't do a proper revision/supersession in the first place, there's nothing to ask them to supersede. However, there is nothing to stop them redoing the revision/supersession and getting it right putting your client right back to square one.

Hope this helps.

Thanks Tony,
I hope it doesn't put her back to square one.
Sue

As far as the IS overpayment goes- I wouldn't do anything to remind the DWP that (potentially) they could now go and attempt to do the proper supersessions/revisions and make a new decision or recovery.

As far as the HB overpayments, what about the following argument:

1. A client who is entitled to IS is treated as having no income/capital for the purposes of HB/CTB (see R(H)9/04 which explains how a finding on such a matter for IS binds a HB decision maker).

2. The IS o/p tribunal found that there was no evidence the DWP had revised/superseded IS entitlement so as to remove IS for the period in question.

3. Consequently, the local authority have no evidence that the client was not entitled to IS for the period (as there is no evidence the DWP have ever made decisions removing that entitlement).

4. Thus there is no evidence for the HB people to supersede and remove entitlement to HB as there is no evidence they do not remain bound by the IS decisions (which as far as we know still exist).

I think it is stretching things a bit as an argument but maybe worth a try.

Martin.

I have run a very similar argument successfully. IS o/p appeal successful because no supersession decision - wrote to HB with copy of the SSAT decision - HB accepted this meant IS was not withdrawn, therefore automatic HB entitlement and revised their HB o/p decision without it needing to go to tribunal.

Interestingly, although IS then redid everything and issued proper supersession decisions and tried again for the o/p, HB never did anything.

Thanks to you both for this.
I have sent HB the Appeal tribunal decision and suggested that they change their decision, however they have come back saying that they need IS to change their earlier decision.
I totally take the point not to alert IS to the possibility of doing a proper suspersession and starting this all over again, and this is why I haven't rattled their cage since the tribunal.
I will try that further argument with HB, I'm not sure I will get anywhere with it though.

Thanks again - Sue

I would push the HB people to send the papers to Tribunal Service (quicker you get them to do that the less chance there is of IS sorting out its end before the hearing).

Sorry Martin, excuse my ignorance. I'm not sure what you mean here. What papers would HB send to the Tribunal Service?

The LA cannot "require" IS to change thier decision. It stands and that is that. Some LA's are using the Court of Appral decision R v South Ribble DC ex p Hamilton to argue that as a matter of principle they can look behind the IS decison, but that is simpy not the case.

South Ribble and Hamilton was a case where the La had evidence that was not previously made available to the DWP that indicated thatIS was not claimed lawfully.

This is not so in the present case. The LA's grounds for their supersession is the ending of IS (and the DWP's determination that they are cohabiting was in any case of itself not enough for them to end IS see the decision of Mr Commissioner Mesher CIS/4434/2004)

The principle that LA's must generally accept DWP decisons without question was succinctly put by Mr Commissioner Williams in CH/943/2003 at para 20:

"Treating the first tribunal decision as final and as decisive of the existence of official error also fitted in with the deliberately parasitic structure of housing benefit. The Council was required to accept other benefit decisions (such as those on income support) and to apply them without question. If the income support decision was wrong, the housing benefit decision would also be wrong, but the Council could not interfere with this. It was entirely consistent with that approach that the Council should pay the same respect to a tribunal decision."

No probs Sue, sorry for not being clearer-

What I meant was get the HB section to prepare a bundle in respect of the appeal against the HB o/p decision and send it to Tribunal Service.

If they drag their feet then send the details direct to the Tribunal Service for the attention of a District Chair and ask that the Local Authority be directed to prepare a bundle of papers and a submission.

Martin.