HB o'pymt was being recovered from ongoing benefit prior to death. Sister has succeeded to tenancy and is now the HB claimant therefore ongoing deductions not possible so L.A is going to issue landlord with a sundry debtor account for the remaining balance.Does landlord have to pay up?

Cheers,
Jeannette

Sorry, not trying to be awkward, but much more info needed if possible. What caused the O/P? Who knew what when? The period covered? Reason(s) for recovering from L/L (other than the clmt died), has the LA PROPERLY notified the L/L of all of the details of the O/P etc......

Regards

Hi Kevin,

The only details the L.A can give us are:
overpayment occurred in 2001 (exact date n/k!)due to tenant's failure to disclose capital.
The total o'pymt was £1,482.00.The outstanding balance is £801.60.
As the HB was paid direct to landlord,they are seeking to recover from us.

Sorry this info is a bit sparse...blame the L.A for that.

Jeannette

Hmmmm!

This is one for Stainsby (or Bob K ....) I think they'd enjoy this. But I'll have a bash and I'm sure they'll fill any gaps....

If the LA have now decided to change the target for recovery, that is a new decision in itself. Accordingly, the LA MUST notify you of the overpayment(s), the amount, the period(s) it covers and the fact that it is a recoverable overpayment (and why it is a recoverable o/p), and the fact that they are now seeking recovery from yourselves.

Within the notification of the new decision, the LA must offer the rights allowing you to request a statement of reasons and/or the right to request a reconsideration and/or the right to request an appeal.

My advice is to take the following action:

1) Write to the LA requesting that they formally notifify you of ALL Sched 6 matters (if they have not already done so).

2)a) Once you have been notified, immediately request a statement of reasons as to why the LA have now chosen you as the target. Also ask why they have chosen not to seek recovery from the estate of the clmt.

2)b) Also, ask the LA to provide full info on how they calculated the capital (this will NOT be a breach of the Data Protection Act - the LA MUST provide this info in order to allow to check the O/P amount. It is your legal right to be allowed to challenge the amount of the O/P if it has been incorrectly assessed).

For info, the time taken by the LA to produce a statement of reasons is added to the one month time limit for appealing (so long as your request was made within that one month).


3) Assuming the LA maintain their position, my advice is to appeal (little will be gained by asking for a reconsideration). If the appeal is against the amount of the O/P, you will need facts to enable you to dispute it. If the appeal is (also?) against the L/L being a target for recovery, your grounds of appeal are more limited - effectively limited to JR grounds (such as reasonableness in the circumstances etc - i.e. did the LA PROPERLY consider ALL of the facts / was their decision to recover from you reasonable etc....


If the LA try the "we can't give that information" approach, don't worry - go straight to appeal and make the LA's deficiencies part of your case. If the LA refuse to notify you or refuse to refer an appeal to TAS, follow the formal complaints procedure thru to Ombudsman if necessary.

Hope the above assists as an appetizer. Bring on Mr Stainsby and Mr Kirkpatrick....

Regards

i don't normally get involved in landlord recovery stuff, but this overpayment has already been the subject of adjudication, and the requirement to repay is part of that decision. the claimant was required to repay - would the decision have also specified the landlord, with recovery then sought from the claimant?

if not, i don't see how a second decision can be given on the same overpayment, unless the original overpayment decision is revised. change of circumstances would give grounds, but it was also make pretty clear that recovery is now being sought from landlord only because the LA can't get its money from the deceased. is this reasonable?

jj

jj:

If there is a change in the target for recovery, that aspect is certainly a decision. It is arguable whether that aspect is a new decision or revised. Either way, a new notification letter is required, even if only in respect of that matter.

Many LAs tend to send O/P notifications (about the O/P itself) only to the party they intend to recover from - that is not necessarily illegal. Therefore, the L/L may not even have been notfified. Even if the L/L HAD been notfified, the L/L would not have been a "person affected" as recovery was not being sought from them at that time. In turn, the L/L could not have appealed.

Once a L/L becomes a "person affected", while they do not directly have the right of appeal against the assessment of the claim, they most definitely have the right to challenge the amount of the O/P if it is incorrect. L/Ls also have the right to require the LA to give full details about the O/P in order for them to be able to challenge it (contrary to the view of one or two LAs...).

Hope the above clarifies, rather than confuses.

Regards

thanks for the reply kevin. you may be over-optimistic on my confusion levels, but it certainly is very interesting. : )

we don't represent landlords, so my involvement with HB overpayments usually involves either official error by the LA, or most often, challenging the nil or reduced entitlement part of the decision which 'created' the overpayment. i get plenty of these, none of which end up going to the tribunal. in other words, the overpayment is _technically_ due to the LA not awarding entitlements due to the claimant. lapsing of claims is probably now the biggest cause (now that our LA have stopped losing them!)so the tribunal of commissioners decision is very welcome. (it would be interesting to know how much entitlement is lost due to claiming being made so difficult.)

so i tend to forget the differences between section 75 of the admin act, and section 71 for the recovery of DWP administered benefits, where are extreemely interesting, and push any number of my buttons. : )

i'll try to explore these differences further when i have time, which is not right now, otherwise i'd definitely confuse, not clarify.

rgds

jj

I am assuming that the L/L was not fully notified of the originla overpayment decision, and whilst I agree with Kevin D that the new decison re target for recovery is a decision carrying appeal rights, the effect of this is to make the landord a person affected in respect of the substantive overpayment.

The landlord will now have the right to appeal against the original overpayment decision, albeit belatedly (but you will need to make sure that you were not properly notified of the overpayment at the outset....if you did get a notification, go thorough it with a tooth comb and if there is anything not fully in compliance with Sch 6, you should be able to re-open your appeal rights)

I would go straight for an appeal on both issues, the substantive overpayment, and the target for recovery.

I am no longer surprised by what is eventually revealed in LA submissons, eg the fact that there is more than one overpayment, and some of the overpayments are official errors, wrongfull assesment of capital or income, the list can seem endless.

Personally, I think there is probably more mileage in re-opening the appeal against the substantive overpayment (and dont forget diminishing notional capital) rather than the target for recovery, because there are basically only 3 targets, the claimant, the payee or the person who misrepresented . (In this case the person who misrepresented is the claimant so you are down to 2, but you may find out otherwise once you get the council's submission)

The overpayment can theoretically be recovered from the claimats estate, but if there is nothing left, then the only other target is the payee if the claimant is dead

The burden of proving the amount of and recoverability of the council. You will have more idea as to whether the council has carried its burden once you get the full submission.

Kevin d, jj & stainsby,

Thanks guys, you've given me some interesting info.I have never come across this particular situation before so appreciate your advice & support. A few years ago I was a former tenants recovery officer and if a debtor died leaving no estate,the procedure was to write off the debt.I personally think the L.A is being unreasonable to expect us to now cough up, especially as we were not responsible for the overpayment and have no way of getting the money back if we do cough up.
I will keep you posted re developments.

Jeannette :0)

Stainsby

Isn't Diminishing Notional Capital only applicable if the capital was treated as notional?

Are you refering to Diminution of Capital - Reg 103?

I was referring to diminution of captial (Reg 103)

Do you realise you made me open my battered copy of Findlay (with its pages falling out ) and you have woken me up!!!!!