I am currently battling with a certain London authority and you may or may not ‎recognise who they are after you have read this.‎

This LA is setting up recovery of overpayments via bulk schedule on the same day the ‎overpayment is created. This deduction can sometimes appear on the a schedule within the ‎week before I have even received the notification. I pointed out that according to the appeals process, they cannot ‎recover during the appeal period. Their response was "There is no legal ‎requirement for the authority to wait to recover overpayments". They offered to ‎refund the money if they received an appeal, but I don't think this is the point.‎

Anyway, it was bad enough when they recovered prematurely, the 'claimant deceased' and 'claimant ‎vacated' overpayments. And after advising tenants to claim under Reg 5, I cleared ‎quite a few of the vacation ones and they sent refunds. Now they are deducting overpayments prematurely that are due to 'claimant's income changed'. ‎

We were paid the HB and the overpayment may be recoverable, but when I requested ‎that the recovery be from the tenant (due to the fact that we could prove we had no idea the change had ‎happened), the HB office in question simply responded:‎

‎"Unfortunately, your tenant neglected to inform us of the change in circs; therefore ‎they failed to comply with Reg 75. Under Reg 99, we can recover this overpayment as ‎it was not deemed an official error, and under Reg 101, we can recover from you as ‎the payee. It may be that you had no idea that the overpayment had occurred, but this ‎has no bearing on our decision". ‎

Does this sound like fettering their discretion to anyone?‎

I have to admit that apart from other errors made with this overpayment, it is their use ‎of Reg 101 that I become a little shaky. ‎

Am I missing the wood for the trees? My interpretation of Reg 101 has always been ‎that they can at least show that they have actually considered the facts. It appears to ‎me, that they only considered the fastest way to recover this overpayment. Can the ‎fact that we have proof of no knowledge of the overpayment have no bearing on their ‎decision? If so, where to next? The customer is not only in arrears ‎because the HB stopped, they also have the added arrears due to this overpayment. ‎

I am also going to the local ombudsman regarding the premature recovery for this any ‎several other overpayments. Any tips on what to quote would be helpful.‎

Well I think that they are technically correct that they are not legally required to halt recovery if there is an appeal, but it is acknowledged good practice (by the Ombudsman among others I think). Some authorities have gone further by not starting any recovery during the period in which an appeal could be lodged.

I think you are justified in seeking a fuller explanation and requesting a full statement of reasons may be a good starting point.

Personally I have no idea which London LA this could possibly be, but are there no liaison mechanisms in place which might help resolve these sorts of disputes? This may of course be a naive question....

Have they complied with Sch 6 paras 14(1)(f) ans 14(2)(a)(b) and (c)

In other words the amount of the deduction must be shown for every innocent tenant, and also the "guilty" tenant must be identified each time.

If Sch 6 has not been complied with, I would threaten not only a complaint to the Ombudsman but suing for restitution in the County Court (following Waveney DC v Jones)

The Ombudsman has frequently upheld complaints re premature recovery, and there is some persuasive but not conclusive case law in R(SB)5/91 and CIS2654/1999

When I run overpayment appeals, I always appeal the amount and recoverablility of the overpayment as well as the target for recovery.

This can work wonders because once you get the Tribunal submission it can uncover all mumber of official errors that the Council has not admitted to first time round.

I recently won an appeal for a tenant who had declared her new partner to be on short term high rate IB, and the Council paid on that basis for 15 months. His IB increased to long term rate after 2 months and the LA said they found out through data matching.

The Tribunal accepted my submission that the overpayment was official error because the Council knew the rates of IB and how long they lasted

AS for the target for recovery, a draft submission re the JR grounds that R(H)3/04 limits us to at the moment was distributed to members of the HA Welfare Rights Forum. Have you not got your copy?

If Housing Benefit falls within the rules of the appeals process, which says that recovery has to be withheld until the appeal time has expired, why are they using the excuse that they are not legally required to halt recovery if there is an appeal?

Having raised this with the DWP at a meeting a few months ago they promised to take it away and look at it with a view to changing regs, this may come up in HB bill due shortly but Cita are doing work on this.

Our view was that recovery should ot start during month of appeal rights and should not begin at all if appeal made, late or not, while appeal was ongoing. We were dealing with a very narrow strand of policy and tried to widen it out.

This is an interesting view, and not without merit, but I think it is difficult to justify in terms of consistency with other decisions.

For example if an LA decides that a person’s change in circumstances should lead to a lower level of benefit being paid, should they continue to pay at the higher rate for a month in case the claimant appeals?

Tue 20-Sep-05 09:48 AM by shawn

Holding on a bit to see if the claimant appeals against the overpayment and then having the decency to wait to see the outcome before enforcing the decision simply involves postponing action which can be taken later anyway. Unless the authority is not dealing with appeals properly it means a delay of perhaps 3 months. What real difference does it make?

This is not the same as continuing to pay benefit to someone who the authority no longer thinks is entitled and so creating a further overpayment. It would be worth self righteous local authorities thinking about the relative impact of what happens whist appeals are going through on the administering bodies and the claimants. For claimants, they might be evicted, go without proper nourishment or have a mental breakdown under the strain of both of these. I doubt the Chief Exec or even the Director of Finance is likely to suffer in the same way. Waiting a couple of months to grab back money may howeever mean not getting a badge saying "I've been a good boy today so I've got Beacon Status!" Poor loves, my heart goes out to them.

Damien
I am not certain I share your view that recovering an overpayment which the claimant thinks is wrong causes them to “be evicted, go without proper nourishment or have a mental breakdown under the strain”. Whereas stopping benefit to which a claimant thinks they should be entitled doesn’t.

Apologies to jembury. I shouldn't have worded a post like that.

Damian,

Dealing with the content of your post rather than the manner of expression, I wondered what your view (or anyone else's for that matter) is relating to the following, not unrelated, scenarios:

1) Appeals submitted solely for the purpose of delaying recovery of overpayments.

2) Appeals submitted solely for the purpose of attempting (usually successfully) to delay possession / eviction proceedings in rent arrears cases.

Appeals in both the above scenarios are, in my experience, on the increase and, based on contact with one or two welfare rights organisations, it is being openly acknowledged that this is a deliberate tactic.

In both scenarios, and for the purposes of this post, it is assumed the appeal is highly unlikely to succeed and that all parties know that to be the case.

Regards

Raising the isue of housing benefit will not delay possession proceedings, unless the case is adjourned by consent, this follows the Court of Appeal decision in North British Housing Association v Mathews et al 21 Dec 2004.

As for HB overpayments, in my experience you often cant judge the likelihood of success until you get the LA submission because its only at that stage where the full facts start to emerge

Tue 20-Sep-05 10:00 AM by shawn

Returning to the 'premature' overpayment recovery issue originally raised by Jill, the following rightsnet 14 January 2005 news story may be of interest –

Overpayment recovery pending a possible appeal: DWP encourages local authorities to delay action

The story highlights and provides a link to DWP advice - contained in the January 2005 edition of Housing Benefit Direct – that the sensible approach for LAs is to delay overpayment recovery action until the expiry of the one month period during which a claimant can exercise their right of appeal.

In giving this advice, the DWP made reference to a Local Government Ombudsman's report that found a local authority to be guilty of maladministration because it started recovery immediately before the claimant had an opportunity to appeal.

Oh Dear!

It is entirely legitimate to delay o/p recovery on technical grounds. At a later date a person may be in a better position to repay, the creditor may forget or become time barred, a technical legal argument may emerge, etc, etc.

What was it that a judge once famously said? "If Mr X succeeds in driving a coach and horses through the regulations he should be left to enjoy the fruits of his ingenuity until parliamant legislates accordingly".

Nevdip
That quote, of course, could also apply to LAs who continue to recover an overpayment whilst an appeal is ongoing an the basis of the fact that the legislation doesn’t prevent them doing that.

Legally, of course, it could. But that argument really won’t wash. It is not appropriate for a public authority to second-guess the motives of an individual’s appeal. That kind judgementalism is one of the reasons that brought a lot of us welfare rights workers into the job in the first place.

Principles of justice presume that parties to a civil dispute have a legitimate cause and were a party challenges the right of the other to recover from him/her then it is only fair and proper for the act of recovery to be suspended until the party has proved his/her case. This is fundamental precisely because the burden of proof is always on the party that makes the allegation and until the case is proven then the allegation remains just that – an allegation.

Commissioners and the courts have made this point repeatedly

delaying tactics!

the serious issue raised by jill has been diverted or obscured by jmembury's 'consistency' argument and kevin's 'tactical appeal' red-herring. tut tut!

no doubt the Ombudsman will be pleased to hear that their view has merits. is delaying recovery until the dispute is resolved by an independent tribunal, really as difficult to justify as suggested here?

what is disputed may be
(a) that any overpayment occurred.
(b) that the overpayment is recoverable.
(c) that the amount of the overpayment is the amount stated.

if the LA adopts a position of premature recoverification, it is in effect saying 'you have a right of appeal, but it means diddly squat to us' or 'fie! fie! a pox upon your rights.' ... okay, they would be more likely to express themselves in an LA-type form of words, and i'm pretty sure they would omit the theatrical use of the chew baccy and tin spitoon, but actions speak louder than words, and it's actions one is judged by, and IT'S THE LA's ACTIONS which are being questioned by welfare rights advisers here. how did we arrive at bad claimants again? it's wearing thinner and thinner, check the stats.

the merits and justification for public bodies to be seen respecting both the law and the public whom they were originally created to serve, is a worthwhile subject for debate, imo, and one which could lead us to very interesting places, i have no doubt...

if it is now justifiable for LA's to commence recovery of sums on their say so, which may not be owed, and to which they may have no right, using powers of 'recovery' given to it as a public body which exceed common law provisions, in the knowledge that the debt is disputed and not established, <gulp!> what conclusions could be logically and fairly drawn by the public at large? (i was going to say by the man on the clapham omnibus, but that is in too bad taste, even for me!)

does anyone think that the inequality in arms might be noticed, giving rise to questions such as 'have public services changed into something other than their original function, and do we want to carry on paying for them?' or 'what does rule of law mean, exactly?' or 'does anyone know where i can buy a pike?'

with respect to jmembury, imo justification on the grounds of consistency is utterly misleading. benefit entitlement decisions are implemented when they are made, and reversed, if varied on appeal.

although entitlement is a part of an overpayment decision, the outcome decision is that the claimant pays money TO the authority. entitlement decisions govern payments flowing FROM the authority TO the claimant. This is a MAJOR difference.

The inclination of bureaucracies to seek consistency may be inherent in the nature of bureaucracies - understandable, and effective much of the time, but a flaw or a folly, if it seeks to impose a model of reality upon reality itself. akin to Cnut requiring obedience from the sea, consistent with that of his subjects, i would say.

the burden of proof for overpayments is rightly on the authority. I would rather see authorities being less blase about overpayment decisions, and more recognition that when they demand payments from people on means-tested benefits it is arguable that they owe a moral obligation to ensure they have got the decision right, as well as a legal obligation. but if that is too much to expect, that they at least respect their legal obligations. the claimant has a right of appeal against overpayment decisions, and it is reasonable to expect the exercise of that legal right to be respected by the other party.

there is no statutory provision requiring delay in recovery during the dispute period, but the Ombudsman has interpreted the law's silence as a pre-supposition that the LA's will act reasonably. If LA's interpret the law's silence as giving them the power to recover, and the Ombudsman's guidance as inconsistent or irrelevant or plain wrong, perhaps that says something rather unpalateable about LAs?

kevin's points, while claiming to deal with Damian's post, introduce a 'problem' of 'tactical appeals', which i have never heard being raised before and am unaware of, and he asks for views. : ) maybe it's a problem talked about by local authorities, behind closed doors. now given a public outing, kevin won't be surprised if the view from the peanut gallery result in cries of 'you know the rules, show us your evidence!!'. he's already had paul's legitimate 'so what!', which is pretty much how I expect my LA would (less legitimately)respond to accusations of delaying tactics plus grinding people down (evidence is in my drawers, btw : ))

which reminds me...

: )

jj

Hi Jan

Firstly, with regard to the original post, I readily agree that it is bad practice to commence recovery before the expiry of the initial appeal time limit of one month - there should be a change in the Regs to cover that, with an exception allowing a clmt to repay early if they want to (er, it happens).

Next, and just for the record, while acknowledging unashamedly that my reply to Damian was somewhat tongue in cheek and "encouraged" by the nature of the original wording of his post (since edited by Rightsnet), I can say hand on heart I am aware first hand that there are an increasing number of cases where one or two welfare rights organisations have OPENLY stated they are appealing to delay recovery of o/ps &/or to avoid eviction. This is while the organisations in question readily acknowledge that the HB appeal stands next to no chance of success. Honest!

As has been pointed out above, the law allows that to occur, so it's not a moan - simply a factual observation. NB: I'd love to know which case Paul (nevip) was referring to....

I also readily agree that the burden is on the LA to show that an overpayment exists and that it is recoverable (although, oddly, if the clmt seeks to fall within the exception of HBR 99(2), then the burden is on the clmt to show s/he falls within that exception).

And, "peanut gallery"? ) With regard to LAs "grinding down" claimants, the following views (strictly personal) may be of interest - if you're bored for instance.... They're almost radical - you'll be shocked after my last post

I'd like to see the introduction of severe penalties on LAs who don't refer appeals to TAS within a certain time frame (90% of appeals can, based on my experience, be classed as "normal straight forward" appeals). The only problem is how to allow additional time for the remaining 10% (genuinely difficult, very time consuming cases) while at the same time preventing LAs abusing the provision. Also, where the LAs UNREASONABLY delay in providing statements of reasons, or dealing with reconsideration requests, those cases should automatically default to appeals. This would, hopefully, force LAs to properly resource their Appeals / Reconsideration sections etc.

On the flip side, I'd like to see a rule brought back for late appeals - there should be good reasons why it is late.

Have I managed to be even handed?

Just as you thought this thread was quietly disappearing....

Regards

Thanks Damian, I took no offence.

Kevin D I don’t think that the delaying recovery is quite that straightforward and a change in the regs could have unintended consequences and be fraught with complexities.

In my Authority’s case, for example, we switched to an arrangement where all overpayments of Housing Benefit are invoiced the day after the overpayment is determined and the decision letters are sent.

Along with the invoice we include a letter explaining that we expect the claimant to either, pay the invoice, contact us to agree a repayment schedule or lodge a dispute (appeal etc) within one month. The letter warns that if we hear nothing within a month we will pursue the matter through the courts, look at attachment of benefits or start recovery from ongoing HB.

Previously, we used to wait a month before sending out the invoice, but found that most people who appealed did not appeal until they received the invoice, by which time we were into the “late” appeal scenario many of which were found not to have good reason for the appeal being late. Now, appeals are received within the time limits.

See R(SB)5/91 for useful guidance

R(SB)5/91 - doesn't this imply only when an appeal has been logged. "There were no recovery rights while the appeal was in process...".

Should be treating this as two separate issues?:

1) It is a local authority's choice whether or not they comply to good practice and that it is not a legal requirement to not recover during the appeal period.

2) If an appeal is logged, the local autghority must comply with the appeals process?

Only this seems evident in the behaviour of this LA when they agreed to refund any monies if an appeal was logged. Apologies if I sound less certain than some of the other contributors on here, but can I make a complaint on their lack of attention to good practice?

I think this approach is sensible and don't have any problem with it. What is more of a problem is where an overpayment decision is taken and the same day or the day after recovery takes place by deduction from benefit or taken back as a lump sum from the landlord who then transforms it into rent arrears. This is what happens with many authorities.

Of course people can suffer from the enforcement of ordinary 'are you entitled?' decisions just as much as overpayments but delaying enforcing recovery for a month, whether invoiced at the beggining or end of the period does not mean the authority losing out. They can get the same ammount back just a little later. Continuing to pay after a supersession decision of no entitlement would change the position by increasing any overpayment therby worsening the authorities position.

jmembery:

Without having read the CD cited by nevip, the approach taken as stated by you seems to be entirely reasonable - and I agree that the appeal is often prompted by the invoice / actual recovery, not the decision letter. So, I'd happily agree that the regs should allow an initial invoice, while providing that no enforcing action can be taken until the expiry of the one month appeal rights.

nevip: I will read the CD when I have a moment....

Regards

Lets start bombarding the Local Government Ombudsman so that something is done about this centrally, too many LA's do this and foget the appeal deadlines. It is something to be gained from the forthcoming HB bill.

It does seem to me that if an HB office thinks that a social landlord is appealing simply to delay repayment they should complain to the housing ombudsman, but I find a small claims court claim when an LA tries to recovery while an appeal is pending usually does the trick

I put this question in response to Nevdip on 27/9/05, but didn't get a response. (I know, you thought this old chestnut was dead and buried!)

R(SB)5/91 - doesn't this imply only when an appeal has been logged. "There were no recovery rights while the appeal was in process...".

Should be treating this as two separate issues?:

1) It is a local authority's choice whether or not they comply to good practice and that it is not a legal requirement to not recover during the appeal period.

2) If an appeal is logged, the local autghority must comply with the appeals process?

Only this seems evident in the behaviour of this LA when they agreed to refund any monies if an appeal was logged. Apologies if I sound less certain than some of the other contributors on here, but can I make a complaint on their lack of attention to good practice?

The ombudsman is the usual remedy for premature recovery- lots of reports condemning this practice- see my guide Housing Benefit for Housing Managers

Hi Jill

R(SB)5/91 dealing with recovery when the appeal has been lodged and CIS/2654/1999 dealing with recovery during the 1 month dispute period basically address the same underlying principle.

I acknowledge that there is nothing in statute that prevents early recovery. What I said was that it "is only 'fair and proper' for the act of recovery to be suspended until the party has proved his/her case", in accordance with judicial principle regarding the burden of proof.

But given these 2 decisions and the ombudsman's view on maladministration it is arguable that early recovery may attract JR proceedings, and, is thus unlawful.

What do others think?

Regards

Paul

Our local council (Knowsley) are commencing recovery BEFORE the overpayment decisions are issued!!