Morning.
I work for a Housing association and we are currently appealing the repayment of an overpayment from ourselves as we were unaware of the circumsatnces which caused the overpayment (tenant was working, it seems to more of a fraudulent overpayment to me).
However, our local authority have commenced blameless tenant recovery despite this appeal having not yet been dealt with. We have had no response from the LA about the appeal and similarly i have been informed that it is waiting to be looked into.
This seems to be quite bad practice to commence Blamless tenant recovery having not yet dealt with the appeal, but are they within their rights to do this?
Thanks,
Jon

There is no legislative requirement for the LA to suspend recovery action where there is an appeal, but the DWP have told LAs it is good practice to do so. The LG Ombudsman has made it clear that continuing to recover an overpayment when an appeal has been lodged would constitute maladministration

Paragraph 6.25 of the DWP's HB/CTB Overpayments Guide highlights its recommendation that recovery action should not commence until appeal rights have expired.

In addition, the DWP reiterated this in HB/CTB circular A13/2006 issued in July this year.

Thanks very much. That has helped me out very much.

Many thanks,

Jon

You could try suing for restittution in the County Court relying on the Court of Appeal case Waveney DC v Jones.

You will also find mileage in Commissioners decisions R(SB)5/91 and CIS/2654/1999. Mr Commissioner Rice wrote at para 6 of R(SB)5/91

" The same question which came before the tribunal appears to have been ventilated in an earlier case CSB/1158/1982, where at paragraph 9 the learned Commissioner stated as follows:
“9 . . . . in my judgment the Limitation Act has no relevance. Recovery under section 20 (which is for the Secretary of State alone) only arises once the adjudicating authorities have determined there is a recoverable amount and have determined what it is. That is the sole jurisdiction of the adjudicating authorities. They are not concerned with whether money can or should be recovered, see paragraph 4 of R(SB) 44/83.”
The Commissioner then went on to point out that time began to run within section 9(1) only after the appellate procedure had been exhausted:
“Accordingly until adjudication is complete the Secretary of State has no right to recover. It is only from then that the Limitation Act period will apply as only then does the Secretary of State’s right of action accrue."

Ms Commissioner Fellner wrote at para 15 of CIS/2654/1999

"15. I agree with the submissions on behalf of the Secretary of State that the appellant was entitled to the benefit of paragraph 25 of Schedule 1B until the day before my colleague’s dismissal of his application for leave to appeal, ie until 29 3 99. I agree with the holding in CIS/210/94 (Mr Lewis assured me that he had found no adverse authority on the general principle) that the “determination” of an appeal occurs only once it can be taken no farther, and not merely once a tribunal has reached a conclusion. Indeed, it might be said that an appeal continues to be undetermined until any time allowed for appealing (or applying for judicial review of) the latest decision has elapsed, though I need not decide this since the appellant here had long been reawarded income support on the basis of incapacity by the time his application for leave to appeal was refused."

I would argue that following R(SB)5/91 that the Council has no right to recover until adjudication is complete, and that following CIS/2654/1999, adjudication cannot be complet until appeal rights have been exhausted. Therefore the Council has no authority to recovery via blameless tenants and so you can go for restitution.

I'm slightly confused, based on post April 2006 changes to overpayment recovery, why did the local authority approach you (the landlord) in the first place?

When I have come across overpayments like this, the LA normally withdraw recovery/invoice, apologise by saying it was an error on their part - this is even done by the LAs who implement bulk schedule deduction as a method of recovery.