i have a tenant of a housing association who i think has been badly treated but i cant find reference to this type of scenario anywhere.

the pensioner tenant had a HB overpayment way back in 97 and recovery was agreed via deductions from ongoing HB payments (at the rate of £11.70 probably indicating fraud?)which has been ongoing ever since.

the tenant was paying more to the rent than was required and built up a credit of £345. the landlord contacted HB to discuss this, without the tenants knowledge, and agreed to pay the credit to HB towards the overpayment.

the first the tenant became aware of this was when the regular rent statement was sent out. in the past the tenant has more on more than one occasion built up a credit and had it returned to them by the landlord without any problems.

the person at the landlord who arranged this states that the money was paid to HB as part of an agreement the landlord signes with HB to repay any opverpayments and quoted reg 101 and 102 and has also advised that the tenant should simply accept this

it seems unfair not to have at least informed the tenant that the landlord were intending to pay, or had paid, their built up credit to HB.

i suspect the money wont be recovered from HB, and thats not really the point, which is, were the landlord in any way required by regulations to have repaid that money to HB when a long standing receovery process that all parties were agreeable to was already in place? and might the tenant have a reasonable complaint against the landlord?

many thanks in advance for any help you can give.

HBO weren't recovering from the landlord they were recovering from the tenant so landlord was under no obligation under the regs or any agreement they may have signed to repay anything as far as I can see. I don't follow their argument.

If the tenant's account was in credit it sounds to me like the landlord has illegally dipped in to their tenant's money to keep their relationship with the HBO sweet (at least on the facts given) but not knowing much about housing law I'm not sure what restitution the tenant has legally other than to sue the landlord for the money and/or withhold paying rent until they've clawed their £345 back (but there may be legal risks if this is not done properly). Surely the £345 didn't belong to the landlord if it was bona fide credit. If that's the case, then it can't have been your client's £345 the HA sent to the HBO can it? Doesn't the tenant have a dispute with their landlord about the true figure on their rent account?

Whatever the legal remedies, the landlord's treatment of their tenant seems pretty cavalier so they should make a formal complaint and threaten to take their complaint up to the Housing Ombudsman if not satisfactorily resolved. The threat of this might get the HA to reconsider and they can then negotiate with the HBO to try and get their money back.

Firstly, your client would be well advised not to let credits arise again. He needs to confirm with his landlord how much he needs to pay to make up his rent. Pay that and no more. When either the rent or the housing benefit change - reconfirm the amount he has to pay with the landlord.

With regard to how he has been treated. It's difficult to say from the information you give. Up to April this year HBO's have had wide powers to recover either from tenant or from landlords. There has been many agruments about this. From April the discretion of HBO's is much more restricted and this sort of messing about will be difficult to repeat.

As regards the particular transaction of taking credit and paying it back to the HBO. I agree it looks fishy. Your client need to ask the HBO for full reasons for their decisions and a full update on where the O/P stands now, how much is outstanding and what is the current decision about recovery. You could then be able to see if you have grounds to take some action.

Has the HBO ever made a decision to ask the landlord to repay or was it more informal than this? If they have never made a proper determination that the overpayment, or any part of it, is recoverable from the landlord then presumably the landlord has never been a 'person affected' by this overpayment recovery and so I'm not sure what right they would have to intervene in the way described. Possibly the landlord was trying to hedge their bets for the future (e.g. in case the HBO changed target of recovery from tenant to landlord) but until a determination has been made to seek recovery from them I can't see how they can do this without their tenant's permission (and it sounds like HBOs are more limited in their ability to change the target of recovery now anyway).

Might be worth asking the landlord for copies of any determinations, demands etc they got from the HBO when deciding to hand this money over, as well as asking the HBO for the same. If there have been any determinations made at any time to seek recovery from the landlord, the claimant has a right to be notified of this as they are always a 'person affected'. There might be some missing pieces to the puzzle that the HBO or landlord can supply that the tenant may have forgotten (the overpayment did occur a long time ago). But if they have taken a short cut to recovering this money then they might be more likely to reimburse it (either HBO or landlord) if they have no defence and the consequences of a possible complaint and/or legal action are likely to outweigh any benefit from banking the £345.

Was the original overpayment with the existing landlord?

Did the landlord have the tenants permission to discuss their rent account with Housing Benefit? Data protection act issue?

The credit balance was not a overpayment of HB, it was the tenants money. HB had already made arrangement to recover the overpayment by ongoing deductions.

Reg 101 and 102 refer to recovery of overpaid Housing Benefit made to the landlord. Again this sum was not overpaid benefit it was a credit balance. At the time the landlord gave the credit balance to HB, that money was not in anyway shape or form overpaid HB! It was the tenants money and permission should have been obtained from the tenant before the refund was made.

I would be asking for the HB to pay that money back, I would also put in a letter of complaint to the Housing Association as I do not believe they had any right to give the credit balance to HB.