This subject has probably come up before, but I am new, so I am hoping that I am ‎forgiven for not searching that well!‎

I work for a housing association. My knowledge on landlord/tenant law is very ‎limited but I understand that a landlord needs the tenant’s permission to deduct money ‎from the rent account (please correct me on this if I am worng). Anyway, my concerns start when an overpayment has been received. ‎For example, I receive an overpayment notification, I then write to the tenant stating ‎that they have been overpaid and that if they disagree, they have to inform me so I can ‎appeal. I also advise them to they should contact HB and appeal (given them the time ‎period for appealing). On the same letter, I add that if the overpayment is correct, they ‎should sign the declaration so I can refund the overpayment from their rent account. – ‎So far so good.‎

One of our tenants has refused to sign, stating that the HB department are chasing the ‎housing association and not him. I need to add that he did not appeal to the ‎overpayment (but then why would he? The notification letter stated that he was not ‎being chased!). This puts me in an awkward position. Reg 93 (2) states that the ‎overpaid rent allowance can be treated as rent arrears, but the Landlord/Tenant states ‎that I need authorisation. In addition, as far as I know, the HB Regs do not overrule ‎the Landlord/Tenant regs. I have always used the reasoning that when a tenant ‎signs a HB claim form, they know that they are responsible for any overpayments, but ‎this still brings me back to the Landlord/Tenant law. I don't feel happy with relying on the fact that a tenant will never dispute...

I am normally good at requesting reviews and identifying overpayments that are ‎incorrect, and monitoring blameless tenants etc, but I am not sure how to proceed with ‎this one. ‎

How do the officers other Housing Associations treat these sort of cases and what ‎procedures do you use?‎

I do not deal with rent accoutns directly, but whenever HB overpayments are paid here, the money goes straight to the account after first informing the tenant that it will happen.

HB Reg 93(2) authorises this, but in my opinion it is ultra vires, but until it is tested in court the practice will continue.

I do not bother asking the tenant whether or not I can appeal, I do it as a matter of course because the burden of proof is on HB departments to prove the amount and recoverability of all overpayments.

You also have a right to full information from the Council regarding overpyments that they want to recover from you. You might have to wait for the submission to arrive, but we never pay back overpayments while appeals are pending

I don't have any detailed knowledge of Housing law, but the issue of HBR 93(2) is of real interest and has been for as long as it has existed.

However, howabout this?

In the first instance, definitely ask the LA for a FULL explanation of how the O/P was calculated and for a FULL list of reasons why they have selected the L/L as the target. I've seen one or two of your letters on my travels from LA to LA - you definitely know some of the questions to ask...

Depending on the answer(s) you get back, consider an appeal, challenging the reasonableness of the LA's choice of target. If you are correct about LL/tenant law and the need for permission to deal with the o/p as rent arrears, consider throwing that into the appeal too (i.e. arguing that LL/tenant law overrides 93(2) and therefore the LA's decision is in any case unreasonable as the L/L has no legal means of taking action against the tenant in terms of HB legislation).

In the meantime, pursue the clmt, initially pointing to HBR 93(2), but also going for an alternative that even if the o/p is not legally rent arrears, it is otherwise a debt caused by the clmt's actions/inactions. Something knocking at the back of my mind seems to recall that a L/L has a cause of action against a person responsible for CAUSING a debt.

Unfortunately, until HBR 93(2) is challenged, no one will know for sure if it is ultra-vires.

Most of the above is simply knocking around ideas - hopefully it will provide some inspiration for others.

Regards

I find you have to be careful not to confuse different issues. Most HA's I know of automatically apply overpayments as rent arrears. There is the question of Reg 93(2) being ultra-vires but unless and until this is tested in court I am sure HA's will continue as at present.

In dealing with your tenant you have to be clear that it is his/her housing benefit claim. As landlord you are simply receiving money on the tenant's behalf. In terms of overpayments, I'm afraid many tenant's would wish it to be a matter between the landlord and the benefit authority. You should refuse to accept this. If the tenant does not dispute an overpayment decision he/she WILL be treated (by the benefit authority) as if he/she accepted the decision. In other words the only options are to accept it or dispute it - there is no third option of ignoring or going into denial over it.

Our procedure is therefore to tell tenants when the overpayment arrives, give them the option of appealing (I will give help to do this) or talking to us to arrange repayment. We make it very clear that if they do not choose one of these options they will be treated as if they accepted it.

It sounds a bit harsh when put this way but it is only telling the tenant what the reality of their situation is.

Landlords have a seperate right of appeal in any case where overpayment is sought from the landlord. You need to be sensitive to any potential for conflict of interest and take care if you are also advising the tenant.

In practice, most of my appeals are using the landlords appeal rights since many tenants simply do not understand Hb enough to dispute decisions. And who can blame them.