since the LA changed its computer software, CTB overpayment decision-notices calculate the overpayment to the end of the tax year. this seems to be nonsense - as in how can somebody have been overpaid in respect of a future period...? eg - decision given in October of overpayment to 31 March following. the inflated overpayment calculation is then added to the person's liability for the year and a liability order slapped on them.

i have other grounds for disputing the decision, but, bearing in mind this is CTB so the legislation trail is um...cacky, can anyone think how the LA might argue against the proposition that all their CTB overpayment decisions are invalidated by this and erroneous in law?

the notice does, btw, use the words overpaid, and overpayment, not excess payment.

thanks in advance for any advice, comments.

Hi jj,

I don't think you're going to like this, but here goes...

The opening part of CTBR 82 states:

"In this Part "excess benefit" means any amount which has been allowed by way of council tax benefit and to which there was no entitlement under these Regulations......"

In my (long held) view, the wording "ANY AMOUNT" must by definition include any future / projected CTB that has been allowed (i.e. credited to the CTAX account).

Further, CTBR 83(5) implicitly takes into account "future" CTB and it states:

"Where in consequence of an official error a person has been awarded excess benefit, upon the award being revised or superseded any excess benefit which remains credited to him by the relevant authority in respect of a period after the date of the revision or supersession, shall be recoverable."

In short, any "future" CTB is recoverable, irrespective of whether or not it would otherwise have been irrecoverable due to official error (this is confirmed in CH/4227/2004 - para 52).


On the assumption that the above is correct, the issue of the quality of notifications is the same as always. Has there been substantial harm / significant prejudice to the clmt? (see LB Haringey v AWARITEFE (1999) EWCA Civ 1491 32 HLR 517). I'd be very surprised if the use of the word "overpayment" instead of "excess benefit" was sufficient to invalidate CTB notifications.

Hope the above helps (even if it wasn't what you were hoping for).

kevin - thanks very much, it does- and honestly, i was rather hoping you would reply. : )

the difficulty i think, is that as far as i can make out, CTB is a weekly benefit, not an annual benefit - certainly the regulations talk of benefit weeks, and awards are made at weekly rates...

it does injury to the language, imo, to talk about a person 'having been overpaid' for a future period after the date of the decision, and the thing about decision notices in my view, is that the wording of the notified decision is an important explanation, and certainly the claimant needs transparency and to be able to understand the decision. when the wording doesn't make logical sense, alarm bells ring.

i've looked at the regs you quoted, but i'm not convinced...reg 82 uses past tenses - "any amount which _has been_ allowed, and to which "there
_was_ no entitlement." doesn't this imply that an overpaid CTB decision will be a past period?

reg 83(5)as you say refers to any amount which remains credited to him by the relevant authority in respect of a period after the date of a revision or supersession, shall be recoverable, but why should an amount _remain_ credited to him? my case isn't an official error case, and i was trying to think of what kind of case this reg would apply to, thinking it might be a case where there wasn't a valid claim, but that doesn't seem to be right...but in any event, if you can revise the award, you amend the amount _to be_ credited, so why should an excess amount _remain_ credited in the period after the decision date?

sorry if that's not expressed very clearly - it might help if i make it less abstract - the decision in October applied high non-dep deduction from July. this means a £6.95 a week o/p from July to October - ok - but from October - March an o/p is also calculated.
why should an excess amount _remain_ credited, when the period is covered by a revised benefit award which adjusts the amount to be credited for that period?

i haven't had chance to read the Haringey decision yet, but the detriment suffered by my client is this - an overpayment decision by the benefit service service triggers a revised council tax bill on which an amount shown as 'overpaid council tax' is due immediately. by including in the overpayment decision an amount for a future period which could be 'recovered' by simply adjusting the amount credited to the council tax account for that period, she has effectively lost the facility to pay council tax by weekly or monthly instalments which is very important to people on income support. in our client's case, a liability order has been obtained already (although the benefit decision has been disputed, i don't expect the Revenue's dep't knew that, or that it would hae made much difference if it did.)
there's an associated HB decision, and client is having to pay a rent contribution to landlord to prevent eviction, at the same time...

this seems to me to be an intrusion of admin arrangements and software issues into the legal entitlement arena...CTB o/p's were not calc'd in this way before the new computer system...

does this make sense? very grateful for your advice kevin...

Awaritefe: www.bailii.org/ew/cases/EWCA/Civ/1999/1491.html

Hi jj,

Unfortunately, I don't have access to all of my records at the moment, so can't quote case law / CDs to support my responses. But, I'll give it a shot.

-----------------
"i've looked at the regs you quoted, but i'm not convinced...reg 82 uses past tenses - "any amount which _has been_ allowed, and to which "there
_was_ no entitlement." doesn't this imply that an overpaid CTB decision will be a past period?"

The issue of the point at which CTB has been "allowed" has already been considered. "Allowed" refers to the point at which CTB is credited to a clmt.

Therefore, in my view, CTBR 82 holds good for "future" CTB that "was" previously "allowed".

-------------------
The application of CTBR 83(5):

CTB has always been awarded to the end of the financial year (except where it is already known that a clmt will cease to be entitled from an earlier date). From memory, this is authorised by the CTB regs (CTBRs 57 & 77? - haven't had time to check properly).

Say an LA allows too much CTB (e.g. incorrect earnings disregard) at the beginning of the financial year. Clearly a mistake by the LA. Say the mistake is spotted and rectified on 1 June 2007. The WHOLE overpayment is caused by the LA's error. For the period 1 April 2007 to 31 May 2007, the o/p cannot be recovered as the clmt falls within the exception of CTBR 83(2).

Normally, CTBR 83(2) would also apply to the remaining o/p for 2 June 2007 to 31 Mar 2008. BUT, CTBR 83(5) is engaged specifically for the period from 2 June and it provides that "future" o/p is recoverable, no matter what errors have been made by the LA (or anyone else).

Where there is not an official error, CTBR 83(1) applies without needing to consider CTBR 83(5) and, in my view, is inescapable.

--------------------

I'm reasonably sure there is more than one CD where CTBR 83(5) has been at issue and I'm not aware of anything to suggest a different interpretation should be considered.

I hope the above helps to clarfy.

thanks kevin, much appreciated. while i still don't agree with you on the intepretation of reg. 82, this is helping me to narrow it down. 'allowed' isn't the same as a 'payment'...???? are the tenses used in a reg. insignificant????

i've had a look at reg 57 - this is the one which talks about a person's maximum CTB "in respect of a day for which he is liable to pay council tax" being 100% of A/B - B being the number of days in the financial year - this suggests to me that CTB might be a daily benefit!!! eek! sec. 131 refers to entitlement in respect of a particular day...

schedule 8 (notifications) specifies that a person is given a statement of his normal weekly amount of CTB, rounded to thenearest penny...

regulation 77 - Time and Manner of granting council tax benefit - while i'm not at all sure i understand what this reg is all about, the wording of 77 (1) is a bit odd - "...where a person is entitled to CTB in respect of his liability for a relevant authority's council tax as it has effect in respect of the relevant or any subsequent chargeable financial year...by making payments to him of the benefit to which he is entitled..."
so this reg definitely does talk about financial years, but i'm not sure exactly what it is saying besides what stuff should go on the person's council tax bill, which of course, is annual...(except revised bills can be issued...)

'payments' is plural, but we also know that the whole business does not involve payments - if they did, i'm pretty sure the LA would not make an annual payment up front and in advance...too risky! : )
but we're talking about credits...and the LA has the power to revise and supersede CTB awards if circs change etc, so there's much less risk with a paper transaction...this is the thing...so what is the point of being able to make revised decisions and supersessions if the LA can't adjust the amount credited? i don't believe the LA can't do this - i'm not familiar with the internal procedures or the IT, but surely this is just an accounting adjustment, where the credit amount is amended in consequence of a revised/superseded decision?

i am struggling with your example to understand why there should be any overpayment from June onwards, when the award has been rectified - this i guess is because i haven't, at this stage at least, accepted the concept of payment for the year : )...(i don't have a problem with awards for the year) and i must admit, reg 83 (5) has me struggling to understand quite why an excess payment would remain after a revision/supersession...the commentary in CPAG equates 83(5) to reg 100(4) of HB regs - where the commentary points to some peculiar types of ecxess payments - my brain is on the verge of packing in for the night, but i'm left struggling to agree that the reg reads in the way you have interpreted it... i need to satisfy myself as to its meaning...even though as i say, my case isn't an official error...full CTB was correctly awarded, but the revision on c/circs, which is part of th o/p decision was incorrect and is in dispute. (this isn't relevant to this particular query - just helps maybe to explain the case to helpful rightsnetizens : ) )

there is an o/p of CTB, but not at the weekly rate claimed by the LA, but in addition to that, and an issue which appears to go much wider than my client's case alone, is the inclusion of the period past the date of revision, when the LA is in a position to amend her council tax credits, and not demand cash up front from her for the subsequent 6 month's CT liability...
incidently, the decision-notice does break down the o/p into pre- and post- decision date, and i'm wondering whether there is a simple software application error causing this, in my eyes, problem...

should have said, i found the haringey decision but can't locate the commissioner's decision - any chance of e-mailing a copy to me, or shawn?

many thanks kevin...i think this weekend's correspondence pretty conclusively proves we are anoraks... : )

jan

This takes a bit of getting your head around but you need to first of all consider Reg 77 of the CTB Regs

Time and manner of granting council tax benefit
"77.—(1) Subject to regulations 80, 81 and 82 (withholding of benefit,
payments on death and offsetting), where a person is entitled to council tax benefit in respect of his liability for a relevant authorityF ’s council tax as it has effect in respect of the relevant or any subsequent chargeable financial year, the relevant authorityF shall discharge his entitlement–
(a) by reducing, so far as possible, the amount of his liability to which regulation 20(2) of the Council Tax (Administration and Enforcement) Regulations 1992(a) (the English and Welsh Regulations) or regulation 20(2) of the Council Tax (Administration and Enforcement) (Scotland) Regulations 1992(b) (the Scottish egulations) refers: or
(b) where–
(i) such a reduction is not possible, or
(ii) such a reduction would be insufficient to discharge the entitlement to council tax benefit, or
(iii) the person entitled to council tax benefit is jointly and severally liable for the tax and the E relevant authorityF determines that such a reduction would be inappropriate,
by making payments to him of the benefit to which he is entitled
rounded where necessary to the nearest penny."

In other words when CTB is allowed, the account is usually immediately credited to the end of the financial year.

This is reflected in Reg 85(5)

(5) Where in consequence of an official error a person has been awarded excess benefit, upon the award being revised any excess benefit which remains credited to him by the relevant authority in respect of a period after the date of the revision , shall be recoverable.

Mr Commissioner Jacobs considered the question of how and when CTB is allowed in CH/1780/2005

"35. Regulation 84 of the Council Tax Benefit (General) Regulations 1992 is broadly similar to regulation 99 of the Housing Benefit (General) Regulations 1987. There is, however, one difference. Regulation 99 refers to ‘payment’ of housing benefit, whereas regulation 84 refers to benefit being ‘allowed’. Mr Commissioner Mesher considered the meaning of ‘allowed’ in CH/0602/2004. He did not need to come to a conclusion on the issue. In view of my decision on causation, it is unnecessary for me to deal with that issue in this case. However, as I heard argument from both Mr Stainsby and Mr Kenny, I record my opinion in case it is of help if the issue arises in the future.
36. Mr Stainsby and Mr Kenny both argued that ‘allowed’ meant paid or credited to a council tax account. I agree.
37. The terminology used the council tax benefit legislation is not entirely consistent. It differs from that used in the housing benefit legislation, because their operation is different. Housing benefit is paid to the claimant or to the claimant’s landlord. Council tax benefit can also be paid, but this is exceptional. The usual way of providing council tax benefit to a claimant is by reducing liability in respect of council tax. See regulation 77(1) of the Council Tax Benefit (General) Regulations 1992.
38. It is, no doubt, for this reason that the heading of regulation 77 refers to the ‘Time and manner of granting council tax benefit’, although this word is not used in the body of the regulation or, as far I have found, elsewhere in the legislation. It also explains why the legislation usually refers to excess council tax benefit rather than to overpaid council tax benefit, although regulation 84(3) refers to ‘an overpayment’.
39. The different methods of providing council tax benefit suggest that the word ‘allowed’ in regulation 84 covers both possibilities, payment and reduction. Unfortunately, the legislation is again not entirely consistent; regulation 82(1) refers to council tax benefit being ‘allowed or paid’, which suggests a contrast. However, it would be surprising if recovery of excess benefit was possible if it were granted in one way but not if it were granted in the other.
40. Mr Kenny made the point that regulation 84 was obviously designed to mirror regulation 99 of the Housing Benefit (General) Regulations 1987 and should be interpreted accordingly. Mr Stainsby drew attention to regulation 99(4) which deals with housing benefit that remains credited to a rent account as a result of the award of housing benefit by way of a rent rebate. "

Where I think the Council are definitely wrong here is the issue of a summons leading to a liability order presumably before any appeal is concluded. I would argue that recovery via the CTAX account can only be effected once any appeal is concluded, not before.

I've always assumed that the benefit simply follows the liability: unless a person has the right to pay council tax in ten equal instalments, they must pay the whole amount in advance at the start of the financial year. The right to pay by instalments is lost and the whole amount becomes payable at once if any instalment is missed; so someone who is not in a position to pay in instalments is going to be treated from the start as liable to pay the full amount in advance and his CTB will be allocated to his council tax account in one fell swoop.

So because the full year's liability is due at once, it is not a future liability or a running liability like the liability to pay rent. If the award was never payable, or circumstances change, then the payment or credit from one bit of the council's budget to another will already have taken place for the whole of the period to the end of the tax year. The benefits department is out of pocket and (not wholly unreasonably!) wants its money back from the tax payer.

Does it help to look at it this way? I've never thought that the vocabulary used (overpayment/excess benefit) probably matters very mcuh.

The commissioner's decision gives us a definition of ‘allowed’ - it means paid or credited to a council tax account. Thanks very much Stainsby, for this reference, it's very helpful, and yes, it's difficult to get one's head around it. : )

i think the vocabulary is important, and probably part of the difficulty - ( another part being the translation between two distinct legislative frameworks). the benefit legislation talks of 'excess payments', the decisions talk of overpayments, we talk of payments when they are credits - what is the benefit recipient to make of this? he ought to be able to make sense of it...and look how we are struggling! : )

from the p.o.v. of the revenue's department, an overpaid benefit decision is a conversion of benefit to council tax due - in academic terms, and i think kevin was pointing to this earlier, it might not be a matter of great significance whether the overpayment decision is correct in law, but in practical terms i think it makes a difference. LA's are not all the same, but here there is a big separation between the benefit service and the revenue's department - they are not well integrated as far as i can see, and while the benefit service is under-resourced, the revenue's department is a highly efficient machine - they work at two different speeds, and the LA has no appreciation of the impact of court summonses and liability orders on the lives of people who are struggling to the best of their ability...the benefit service also struggles and creaks, and does eventually sort things out, but it may take weeks, months, and metaphorically speaking, occasional bangs with a hammer...

my client probably owes the LA little over £30 for what is now last years council tax, yet she now has a liability order for £330, which she is having to pay out of IS, along with £20 for (also inflated) rent arrears, plus payments to this years CT...

the legal problem as i see it is this - accepting that CTB is allowed for the year, and the definition of an excess payment being any amount of CTB allowed to which the person had no entitlement, if this is taken literally, with no step in between, any change in circumstances resulting in a reduction in CTB entitlement will cause an excess payment (called an overpayment in the notication to the claimant.) there will be an excess payment even if the person reports the change in their circumstances on the day that it takes place, and the LA processes the change on the day it is reported. we would all be complaining about the LA issuing overpayment letters when it is impossible for the person to have caused an overpayment.

this doesn't happen. why? i think because there is a step in between...the award is revised, and in practical terms that step is that the amount credited to the council tax account is adjusted.
it is perfectly legitimate to adjust a credit amount where that adjustment is covered by a benefit officer's decision - up or down, and in reality, this is taking place all the time... hence, i assume, no need for these matters to come before the Commissioners...

in other words, the step in between is that the LA can adjust the amount of credit allowed for the year at any time throughout the year when there are grounds to revise it - it is not legally stuck on the amount originally allowed...if it were, it would be impossible for people to avoid having excess payments on change of circumstances, however scrupulously they operated their benefit claim.

i can see no more justification for including a period _after_ the date of the revised decision in an recoverable overpayment calculation, than i can see for calculating an overpayment for a period of a reduced award following a timeously reported change of circumstances - when in both circumstances the amount of credit allowed for the subsequent period _can_ be adjusted...

the excess payment is the difference between the amount of CTB awarded, and the amount to which there was entitlement - if an overpayment is being calculated in the current year, the effect of the revised decision on the amount of CTB awarded for the year must be taken account of, not ignored, in calculating the difference between the amount allowed and the amount to which there was entitlement.

the person still has an increased CT liability which they will have to pay, but at least, the risk of increasing both the debt and the stress on the claimant through court action is reduced, and the authority's anti-poverty strategy is not undermined by its own actions and turned into a mockery.

Council tax benefit overpayment decisions in this LA always used to end at the benefit week of the revised decision, until the new software was introduced, and even on the new decision notices the period is separated into pre-and post decision date - it's just that the post decision period is included in the o/p total, and it might be a simple matter to exclude the amounts, and in my view, comply with the benefit law... : )

i've been all round the wrekin on this one, thanks for all the help... i think the use of past tenses in the legislation and commonsense in its application are significant. unless someone can explain to me what is to stop the LA effecting 'recovery' for the period after a revised decision to the end of the current tax year by means of a simple adjustment to the credit amount in the council tax account, i cannot see that an overpayment decision of the kind under discussion can be lawful. i would think that an LA should not want to be obtaining liability orders on the bases of unlawful overpayment decisions... ????

jan