Hello (Happy New Year)
Can anyone help me please. I have a tenant that has an overpayment of a Discretionary Housing Payment. The LA has informed the Landlord that this overpayment can not be claimed back from the claiment so they will be invoicing the Landlord. I do not think this is correct can I have your veiws please

DHP's are not payments of HB. They are additional payments that an LA might make, if it decides to. When making the regs (under the CSPSSA), Parliament took a very 'relaxed' attitude to the making of the DHP regs, and there are no regs regarding most aspects of the scheme, overpayments being one of those aspects.

The DWP have written up guidance relating to DHP's (see link below), but the guidance is just as relaxed as the regs!

The recovery of the O/P is therefore very much in the common law arena. Everything from Wednesbury reasonableness, (did the LA notify the landlord of a DHP payment being made, and what to do if they thought they were being overpaid, if not, the decision to recover might not be Wednesbury reasonable!), to the law of agency (was the landlord consulted about whether to accept and/or decline payment, probably not. The entitlement was that of the claimant, not the Landlord, so was the landlord acting as agent, if so then the O/P might be recoverable, if not then probably not!).

I would hazard a guess that if you were to decide that the LA is acting contrary to common-law, then a pre JR letter to the LA's HB and legal depts. might well reverse the situation...

Personally, I don't see why TAS can't have responsibility for the amount of the awards, the duration of the awards, backdating and recovery of DHP's. The DWP argument is that TAS might fetter it's discretion, (see guidance), But I think that is rather poor reasoning, for a scheme which spends £10's millions of direct DWP grant, and many £10's millions more in public spending (LA & DWP funding streams combined). But I can't see the DWP turning this little baby over to TAS anytime soon (or at all), and perhaps given the rather scathing remarks of more than one commissioner on the quality of LA submissions in HB/CTB, TAS/Commissioner's might be a little hesitant to accept such a role. I can’t see many LA PO’s being able to present common-law arguments on recoverability of DHP (though there are some), but would love to see the submissions! On that happy note, I will now dismount from my hobbyhorse, and get back to work...

http://www.dwp.gov.uk/housingbenefit/manuals/dhpguide.pdf

I had a similar case last year. Of course DHP is not housing benefit so all the recovery procedures concerning HB or CTB do not apply. When I looked up the enabling regs (sorry haven't got them to hand) I could find little mention of recovering overpaid DHP. What there was related solely to the claimant - not any other party.

In my case I responded to the demand for repayment by asking the LA what regulations / contract or obligation there was to justify paying back. That was 8 months ago. I'm still waiting for an answer.........

Not much at all in the regs - DFA Regs 2001
Reg 8

Without prejudice to the generality of paragraph (1) above, a relevant authority may, on any such review, cancel the making of further such payments and recover a payment already made where that authority has determined that -

(a) whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, a material fact and, as a consequence of that misrepresentation or failure to disclose, a payment has been made; or

(b) an error has been made when determining the application for a payment, and as a consequence of that error, a payment had been made which would not have been made but for that error.

The starting point is the primary legislation ie S69 of the Child Support Pensions and Social Security Act 2000

S69(1) states:
"69.–(1) The Secretary of State may by regulations make provision conferring a power on relevant authorities to make payments by way of financial assistance ("discretionary housing payments") to persons who–
(a) are entitled to housing benefit or council tax benefit, or to both; and
(b) appear to such an authority to require some further financial assistance (in addition to the benefit or benefits to which they are entitled) in order to meet housing costs"

I could find no provision under S69 to make payments to landlords, unlike housing benefit where Regulations can be made regarding the person to whom benefit could be paid (S5(1)(i) Social Security Administration Act 1992.

It could therefore be argued that the payment to the landlord was ultra vires.

S69(2) (g) and (h) of the CSPSSA 2000 is the enabling legislation for reviews, and recovery of overpayments:

"(g) provision entitling a relevant authority that are making or have made a discretionary housing payment, in such circumstances as may be prescribed, to cancel the making of further such payments or to recover a payment already made;
(h) provision requiring or authorising a relevant authority to review decisions made by the authority with respect to the making, cancellation or recovery of discretionary housing payments."

The provision governing reviews and overpayments is Reg 8 of the Discretionary Financial Assistance Regulations 2000:

"8.–(1) A relevant authority may review any decision it has made with respect to the making, cancellation or recovery of discretionary housing payments in such circumstances as it thinks fit.
(2) Without prejudice to the generality of paragraph (1) above, a relevant authority may, on any such review, cancel the making of further such payments and recover a payment already made where that authority has determined that–
(a) whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, a material fact and, as a consequence of that misrepresentation or failure to disclose, a payment has been made; or
(b) an error has been made when determining the application for a payment, and as a consequence of that error, a payment had been made which would not have been made but for that error."

The power to recover overpayments is limited to cases of error, or misrepresentation by or failure on the part of any person to disclose a material fact.

This would preclude recovery of overpayments that arise because another officer had a different opinion as to whether the DHP should be made. It would also preclude an officer deciding that an overpayment had arisen because of a backdated award of another benefit.

It appears tom preclude recovery of an overpaid DHP from a landlord who received the payment but does not preclude recovery from the claimant. There is no power to recover from ongoing housing benefit entitlement.

The Commentary in Findlay supports my argument. The current edition reads:

"A review of the decision awarding a DHP is a necessary precondition of recovery. Under sub-para (a), a DHP may be recovered on similar grounds to those in s71 SSAA and reg 101(2)(a) HB Regs: see the Analysis to the latter provision. Sub-para (b) requires the error to take place during the course of the determination, but need not necessarily be that of the officer making the decision. It would be sufficient if an officer carrying out some inquiries made an error. "Error" must, however, mean a mistake as to law or fact. It cannot apply to a situation where a reviewing officer takes the view that s/he disagrees with the first officer’s judgment or exercise of discretion"

Reg 101(2)(a) of the HB Regs is aimed at the person whose misrepresentation or failure to disclose a material fact caused the overpayment.

I dont think Councils have any power to recover overpaid DHP's from landlords, but if a DHP has been paid to you and then maximum housing benefit was subsequently paid for the same period as that of the DHP, you may want to show goodwill by repaying the amount, otherwise the HA should not be held responsible

My reference to the Discretionary Financial Assistance Regulations 2000 should of course be DFA Regs 2001