Can anyone help with an argument to try to prevent the recovery of an overpayment of HB from Incapacity Benefit. I am trying to argue that recovery cannot take place because Incapacity Benefit is not a benefit paid under SSA 1986 as prescribed under Reg. 103 of Housing Benefint (General) Regs. DWP have stated that IB is included in the list of benefits listed in HB Overpayment Recovery Guidance and I have checked this and it appears that this is so. But should IB be included in this list. Has anyone tried to challenge a decision to recover from IB or is there any case law I could use. The amount being recovered has been reduced following an argument on hardship but they are still recovering £10 per week.

Elizabeth

There is a note supporting your argument on p524 of the 16th edn of CPAG's HB and CTB Legislation.

If you can't convince the DWP to stop recovering, judicial review is the only course open to your client.


DISCLAIMER: This post is intended as a general contribution to the discussion in this thread. It is not intended to be relied upon as legal advice. Anyone with an identical or similar case should consult a solicitor or lay adviser with expertise in welfare rights law.

Sorry, I should have added that as far as I know, this argument has never been tested in the courts.



DISCLAIMER: This post is intended as a general contribution to the discussion in this thread. It is not intended to be relied upon as legal advice. Anyone with an identical or similar case should consult a solicitor or lay adviser with expertise in welfare rights law.

reg 16 (4) of the SS (Payments on Account, etc) regs limits the amount of deductions, so should reduce below £10 to around £8.35.

reg 15 (f) prescribes incapacity benefit.

you might want to consider reg 105 (3) of the HB (Gen) regs in recovery from prescribed benefits. i haven't noticed this before but it starts - "Where the Sec of State is satisfied that -
(a) a recoverable overpayment of housing benefit has been made, in consequence of a misrep of or failure to disclose..." and goes on to quote the section 71 provisions for overpayments of ss benefits, which don't have the additional clause applying to HB overpayments (and couldn't reasonably be expected to know that he was being overpaid....) i doubt very much that in practice the Sec of State does anything other than accepts an o/p decision by the LA, but the reg does imply a second bite of the cherry here, so it might be helpful if there were issues about the o/p decision in the first place.

jj

Thanks for your help and we have looked at Reg 105(3) as a possible solution but feel that the DWP will take the view that the client failed to disclose a material fact which resulted in the overpayment of HB.

I may be wrong but I think that Reg 15(f) prescribes incapacity benefit as a benefit from which other social security overpayments can be recovered but not overpayments of HB.

I am coming to the conclusion that the only course for the client may be JR but we will try to put pressure on the Local Authority to use its discretion not to recover with the threat of JR.
Elizabeth