ive just entered a new postion and ive been given some forthcoming tribunals to argue aginst recovery of O/P from the housing association(i have experience at representing at tribunal on behalf of the tenat but never for the company)

tenant gave incorrect info on claim form for 2 years regarding the age of her son and the moving back into property of working adult daughter. tribunal date looming.

ive written a lenghty letter to the tribunal detailing how HA was unaware that tenants circs had changed, how HA didnt in anyway contribute to O/P, how recovery will affect finacial health of HA, that HA was unaware that payments received were O/P, that if tenant evicted will be hard to trace them, and that HB have more powers and methods of recovery available to them, etc. letter was written after reading chris smiths overpayment manual

im asking that tribunal side with HA and dont allow recovery directly from rent account. the oral appeal was requested before i got here, so im just taking over what was already started

is this actually a matter for the appeal service to consider and can they direct that HB recover by other means, or should the appeal be retracted?

if so, does my letter need to be quoting regs and past cases etc or will a full explanatory letter of circumstances of how O/P arose and why the HA oppose recovery from them do the job?

is the HB rep going to try and bamboozle me with regs, and circulars and cases etc, or is it a more common sense approach than that?

as i say ive done appeals for tenants before and mostly relied on common sense and facts of the matter to get me through, and mostly successfuly, but somehow i sense this may be a more detailed affair.

any thoughts on matter will be gratefully received

As you probably guessed from the lack of response so far this is one of the more complex areas of benefits at present. Unless something has changed recently that I am not aware of, following the panel of commissioners decision there are a couple of issues you need to know about.

Firstly, can you actually appeal against the decision to recover from you? At present, the landlords’ right of appeal against the decision to recover from him is limited. You can only lodge an appeal on issues that would constitute grounds for Judicial Review. Some will argue that these grounds are quite wide, but practically your chance of success is very limited.

In a recent couple of commissioners decisions (sorry out of the office at the mo so can’t provide numbers) it was identified that to win the landlord must prove that the decision was “so unreasonable no reasonable authority could have reached it” which is difficult to do.

In another the commissioner said that even if it was assumed that a blanket policy of recovery from a landlord was illegal “and that is only an assumption” the landlord would have to provide evidence that an authority was acting that way.

This being said, in my authority under the circumstances you describe we would certainly have recovered from the claimant.

Good luck, but I think you may have an up hill struggle.

May be stating the obvious, but have you gone back and checked from stage one? They can only recover from you if you were sent the correct notifications both at the time payments of HB started, and with the overpayment recovery notice.

Otherwise I can only say that on going to appeal in similar cases I still did not succeed, as the council had not acted illegally.

Best of luck

I have developed a standard submission for these cases, but so far only one has got to a Tribunal (one of the co authors of Findlay heard the case and threw it out unfortunately)

The amount invloved was too small to bother taking it further (but I did get a full statment of reasons.)

When a case comes up that invloves a worthwhile amount, I plan totake the case on to the Commissioners if I lose at Tribunal.

The great difficulty is arguing how R(H)3/04 is to be applied (and you need to reserve your position as to whether R(H)3/04 was correctly decided)

the appeal requests were made before i came into this post, but looking back at the original notification letters everything seems to be in order, so theres no mileage in that route

i shall look up R(H)3/04 for inspiration

ive just looked into my HB regs book and sicovered that its older than i thought 03/04, and R(H)3/94 isnt in it. can you send me any info on it please?

A copy of R(H)3/04 is available via the osscs.gov website.

I have taken several cases to tribunal (all lost) and even tried to take to commissioners (refused leave) so I am quite frustrated on this.

I get the impression that a hard line is being taken on this issue. I.e. that any appeal would have to be good enough to satisfy a full JR court hearing and not to interpret JR principles into the more specialised (and informal) SSAT framework.

I have found quite simply that if an LA simply states it is being reasonable in this matter - it will be accepted - because R(H)3/04 specifically says tribunals cannot consider the reasons behind it.

There is one suspicion I have on this matter - I think it was a comment made to me by an appeals service clerk - that some sort of "guidance" was issued to tribunal chairs after R(H)3/04 was issued.

Has anyone else heard of this? I would love to see a copy, if it's not just a figment of my imagination.

Have you applied direct to the Commissioners for leave?

Yes and turned down as no error of law. Since my claim for leave was based on inadequate reasons for ruling against a (JR relevant) issue raised before the tribunal, the refusal of leave was disappointing.

Can only conclude to being mystified at the inconsistency in a SSAT right of appeal on JR grounds. It seems that both the appeal and disputes about the appeal will only be considered on JR grounds and not on SSAT appeal principles. If this was the intention, why bother with R(H)3/04 at all. The option of raising a JR hearing outside SSAT was always there. Seems to defeat the object of having an SSAT system at all.