Would be interested to hear views on the following:

1. Prior to 6/4/03, a decision on Housing Benefit had to be made by an officer of a local authority (it could not be made by a person working for a contractor such as CSL (now Liberata), ITNet or Capita).

2. That was changed (so that contractors could make decisions) by SI 2003 no 936 which triggered Sch 8 Part VIII of the Welfare Reform and Pensions Act 1999.

3. It often used to happen that "decisions" were in fact made by the contractor and never approved by the "Client Side" (ie the LA HB workers). Benefit Fraud Inspectorate reports are full of such instances (and the reports are a good source of information for whether this was happening in any particular council which had contracted out its HB at any particular time).

4. In a case where it appears that "HB" has been "awarded" by a contractor some time during a period prior to 6/4/03 (and that the LA did not make the decision) and the LA later decide that some or all of this "HB" has been overpaid what is the situation?

5. I would like to argue that as the HB at that time could only have been awarded by an officer of the Council, what was paid to the claimant at that time cannot be described as something "paid by way of housing benefit"- therefore it cannot have been overpaid within the definition of an overpayment in Reg 98 HB Regs and cannot be recovered using Reg 99. In essence the argument is that if the payment was not made under the HB Scheme then it is not proper for it to be recovered under the HB Scheme.

Any alternative arguments/other suggestions (or decided caselaw ) on this issue would be appreciated.


Thanks.

Martin.

I had a case where a similar argument was raised. In my case the HB computer system went wrong and it made a double payment whereby it paid £3500 instead of £1750. I argued that they could not recover as there was no decision to revise (Reg 98). However, the authority recovered the overpoayment. We then took County Court action and the council did not defend.

My guess would be that a double payment like you describe is a "payment by way of housing benefit" and thus an overpayment under Reg 98.

No revision could be done in that situation (as there was never a decision to pay the incorrect amount in any event). The analysis in Findlay suggests that reg 98 would include that sort of situation.

Your argument sounds like a good one to me. I've no experience of such HB cases, but I recall from my former AO days that no overpayment decisions could be made for periods when people were on Training for Work - when they used to get their IS rate plus ten quid. Those payments were not based on statutory entitlement but cobbled up administratively, and could not be treated as IS, so if an o/p period included a period of TFW in the middle, two seperate overpayment periods and decisions had to be given, omitting the TFW period completely. There was an administrative black-hole as far as recovery of such overpayments was concerned. This sounds like a very similar thing - with the black-hole eventually being closed by the SI, but no legal basis for recovery action prior to its commencement.
My view, anyway... : )

jj

We argued succesfully in overpayment cases at tribunal that there was no valid decision where it was made by the contractor rather than the relevant authority.

In our cases decision notices (sometimes on contractor headed paper or signed by a member of staff identifying themselves as working for the contractor) were issued by the contractor on a date prior to the date the decision was 'confirmed' by an employee of the relevant authority.

It may be worth asking for copies of the internal paperwork by which the contractor refers their 'suggested' decision to the local authority for an 'actual' decision to be made (and check dates against any decision notices issued to the claimant!).