I have a case where HB accidentally paid my clients benefit twice for the same period. When the landlord drew the authority's attention to the error the authority made an overpayment decision and recovered the overpayment which naturally the landlord then took from my clients rent account. I put in an an appeal but the authority have replied saying my client is not a 'person affected' under reg 3(2) of the Decisions & Appeals regs. Anyone got any opinions how this reg should be interpreted or know of any caselaw from similar cases?

not sure if i'm misunderstanding this, but i would have thought that if the landlord received double payments, told the authority, who then recouped one of them, that that was correct, and the mistake is the landlord's, in debiting the tenant's rent account. the landlord presumably isn't arguing that they should have the money...?

jj

The landlord didn't know it was an overpayment at first. They paid the overpayment into the rent account and then only later discovered that it was benefit to which the tenant was not entitled.

ok, thanks - i think i'd go with the suggested interpretation in Findlay - the overpayment decision includes a revision of her entitlement, which carries a right of appeal.

Reg 3(1)(a) of the Decision Making and Appeal Regs.
The Claimant is ALWAYS a Person Affected.

Para (2)qualifies this by saying that para (1) only applies where the persons rights duties or obligations are affected by a relevant decision. Since it affects her rent account I think it applies. The authority says "Recovery is being sought from the landlord not from your client. It is unlikely that it could be argued that she has the right to request a refund from her rent account of £624.30 public monies to which she has no entitlement." Any thoughts?

The Para (2) restriction was never intended to apply to the claimant, otherwise it could be argued that a claimant never has the right to challenge any overpayment paid to and recovered from a landlord or even (if an LA tenant) their own rent account.

The authority submitted the appeal as "not duly made" on the grounds that the appelant was not a person affected. This was submitted to a District Chairman with the 'does not contain sufficient grounds' box ticked by the clerk to indicate the reason for referal. The DC has then decided that the appeal was "valid and should be admitted for a hearing". When it was heard neither I nor the claimant attended and the chair, a part timer, possibly unaware of the DCs decision, disallowed the appeal on the grounds that the claimant did not have a right to appeal. Although the statement of reasons shows that the tribunal heard evidence and made findings of fact on what had happended there is no indication that the issue of whether the overpayment was recoverable applying reg 99 was ever considered, solely the issue of whether the appelant was a 'person affected'.

Any views on how the DCs prior decision affects the ability of the tribunal which hears the appeal to come to the exact opposite view?

On an entirely different note, what argument do you intend to make at the tribunal once you have established your right to appeal?

Is there an argument here that there is no overpayment (within Reg 98 of the HB(G)R 1987) since the decision cannot be revised? It is clear that reg 98 requires the decision to be revised (or 'further revised') and that would surely not be possible here as there is no defect in the decision itself? The problem is with mistaken payment and not an incorrect entitlement decision, as far as I can see.

That would make the overpayment decision wrong (and presumably you would seek a tribunal declaration to the effect that the overpayment decision was invalid for lack of an 'overpayment' within reg 98).

The LA would be thrown back on common law recovery (in restitution) which might be significantly more difficult for them depending on the circumstances.

Damian, don't know if this would help as it sounds like the LA has recovered in full already. Anyway, there's previously been quite a discussion as to whether in such cases there has actually been an 'overpayment'.

see

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=234&mesg_id=234&page=2

and this thread on the HBinfo.org site

http://hbinfo.org/forum/viewtopic.php?t=1646

jim

end of long week please ignore above post. I misread and thought LA had paid landlord & tenant rather than paid tenant twice. jim