I'm looking for a fairly recent decision where the LA were entitled to recover an overpayment where IS has been wrongly awarded. I need this for an appeal in the morning.

Does anyone know of it and have the reference.

Thanks.

My request for a CD is in the following context:

Client overpaid IS from 02/04 to 12/04 and HB from 02/04 until 10/05 becuase she failed to disclose receipt of certain income. This was discovered by DWP in 12/04 at fraud interview, but - apart from suspending payments - they did nothing about it till 09/05. There is evidence that the client disclosed the change in 05/04 to both the DWP and the LA.

HB say that from 02/04 until 12/04 they'll go with the IS appeal (which IMO will be straightforward - no failure to disclose), but from 12/04 to 10/05 they are saying that client failed to disclose IS stopped in 12/04. In fact, IS was suspended then, but entitlement was not withdrawn until 11/05.

The LA say that they didn't have to do anything about the disclosure in 05/04 becasue the client was on income support! But if the commissioner has said that a LA can recover HB where IS entitlement was given incorrectly, the position taken by the LA in this case would be unreasonable - right? They should act on any change which might suggest that the IS (or even the HB) might be wrong.

I've got some other arguments to go with this:

1. The CoC reg only says that client's on IS have to report changes in 'entitlement' to IS, not payment. In this case, entitlement didn't change until 11/05;
2. The cause of the whole overpayment was the original official error (failure to act on a reported change) and it is a falsity to break the overpayment into seperate periods.

Any more ideas would be welcome.

Well, as tends to happen more often than not, I'll play devil's advocate from the LA view point.....

Firstly, was there official error? I'd argue not.

The LA would not necessarily be at fault to continue payment while an investigation was on-going (by either the DWP, or the LA). I don't think the LA is in any way bound to suspend HB/CTB just because IS has been suspended. CSHB/0718/2002 (para 42) may be of interest - there is another CD supporting that analysis, but I don't have access to my "library" at the moment.

In R v South Ribble BC ex p Hamilton (2000), it was found that an LA could go behind the DWP decision where it could be shown that IS was not LAWFULLY being paid - para 27 summarises. However, I don't see that it places a DUTY on the LA to act (depending on the merits of each case).

In R(H) 1/04 (aka CH/0571/2003), it was found that an LA was not required to ascertain whether IS was correct or not.

There are further CDs (again, no library, so no refs for now) that suggest a short delay in terminating a claim is not an official error. The periods covered in those CDs range from 9 days to nearly two months; perhaps indicating that it will again depend on the merits of each case.

Looking at your first argument about changes in entitlement to IS, this looks very interesting. However, even if correct, you still need the overpayment to be caused by "official error" to have any hope of being successful.

Although the above takes the LA arguments (at least in part), my honest objective opinion is that I'd nevertheless be more confident of the LA's position than the clmt's.

Regards

Reg 75(2)(e) as it was of the HB Regs is clear, there is only a duty to disclose the end of entitlement to IS, nothing else, not even suspension of payment.

I know ofno recent CD that undermines this, and if the LA have one they should give you a full copy well in advance of the hearing. If they dont, I think the Tribunal must adjourn to give you the chance to look at the CD and comment on it.

I dont think LA's can take South Ribble too far. That case involved a claim where IS had not been obtined lawfully and the LA had evidence that had not been available to the DWP

You may also find CH/0943/2003 helpful, particularly para 20 where Mr Commissioner Williams wrote:

"20 Treating the first tribunal decision as final and as decisive of the existence of official error also fitted in with the deliberately parasitic structure of housing benefit. The Council was required to accept other benefit decisions (such as those on income support) and to apply them without question. If the income support decision was wrong, the housing benefit decision would also be wrong, but the Council could not interfere with this. It was entirely consistent with that approach that the Council should pay the same respect to a tribunal decision."

If there was no failure to disclose, the IS overpayment will of course not be recoverable, but as Kevin says, the HB rules are different, although in this case it should be fairly easy to argue that the HB overpayment was caused by a DWP official error.

Thanks for replies.

The appeal was ajourned for more information to be sought from the DWP.

The chair, LA's PO and I had an interesting discussion around the subject. If only all difficult appeals were so handled by chairs.

I feel more confident about the appeal now. The chair proffered that the official error was the DWP's failure to pass on information to the council at the time they became aware that there was a problem (the nature of the direction to DWP). This would predate the IS suspension and if the new chair holds a similiar opinion we won't have this discussion again - hopefully.

Thanks again guys for replying - much appreciated.