I have always thought (though not too sure why) that if the LA have failed in the procedures they have undertaken when seeking to recover an overpayment (eg not considered underlying entitlement, or once decided overpayment is recoverable jumped the issue of whether to recover it or not, and just gone on to decide from whom) that they then cannot go on to recover the overpayment.

At a recent Appeal hearing the Chair implied that if he agreed that the LA had failed in its procedures the LA could then just go away and correct them and seek recover of the overpayment all over again. He was basically telling me I didn't have a leg to stand on even though the LA had failed in its procedures.

Saying this he didn't want to make a decision on the day and I await the decision early next week.

Have I been appraoching this from the wrong angle ?? Can anyone help!?

Julia,
Your chair seems to be adopting R(H)3/04 paras 74 - 76 extract here:

74. That leaves the second main question argued before us which can be disposed of much more shortly. Again the question of the effect of any procedural defect in the steps taken by the authority will only fall to be considered by an appeal tribunal on a properly constituted appeal, by a particular appellant against a recoverable overpayment determination for a particular amount made against him pursuant to section 75. Here the introduction of a full statutory right of appeal to a judicial tribunal having full jurisdiction to rehear and redetermine for itself the factual basis of the determination as to recoverability as well as its legality, coupled with the requirement to give a full statement of reasons for its decision if requested, means that many of the arguments which formerly occupied the courts on judicial review applications concerning procedural defects on the part of an authority will cease to have so much practical effect.
75. Failures for example by a local authority to provide particulars of the facts, grounds, amount and period of the overpayment as required by regulation 77, or to notify the appellant of the existence of his rights of appeal, will for practical purposes in the normal case have ceased to cause any significant injustice to an appellant by the time a properly constituted appeal does get before the tribunal. This is because the appeal process affords him the opportunity to adduce evidence and have a full rehearing before a judicial body able to go into the factual basis of the claim that the money is legally recoverable from him, as well as any maintainable challenge to the lawfulness of the whole process. It may still be necessary, in an extreme case where the Council’s attempt at operation of the procedure has been so far defective or non-existent that the tribunal is satisfied there has never been a valid basis for a determination against the appellant at all, for the whole process to be held abortive and the appeal summarily allowed on that ground; but such cases of total rejection where the authority will have to abandon its attempt at recovery or start again will now be rarer than in the days when the only judicial control was by way of review.
76. Thus if the tribunal is satisfied on the facts before it that the case for a recoverable overpayment determination against the appellant is made out, incidental procedural defects in the local authority’s determination that no longer have any
continuing practical effect and have not caused any injustice still unremedied by the tribunal itself will not in our judgment prevent it confirming the authority’s determination, or if necessary making its own findings and substituting its own decision as to the amount legally recoverable. Consequently we accept the arguments of the authorities and the Secretary of State summarised in paragraph 31 above, with the test of “significant prejudice” or “substantial compliance” explained in Haringey LBC v. Awaritefe (1999) 32 HLR 517 applied as indicated above to take into account what happens in the tribunal appeal process itself. By the same token we reject the arguments for the landlords that any past failure of procedure must be fatal to recovery, or that past administrative cost and delay is a sufficient prejudice in this context to deprive a tribunal of the ability to confirm a determination or substitute its own, even where the original failures of notification, etc., have ceased to be of any practical effect.

Unless you can argue the decision is defective in JR terms it looks like any defects that can be corrected by the LA will not be overturned by a tribunal.

On the other hand the tribunal may be about to rule in your favour- but then say that the council can go back and try again. This does seem to mean that you have no advantage, but in practice I find that quite a number of councils then just give up, perhaps exhausted by the process or incapabable of generating a correct notification. In general though, I agree that, in the light of recent test cases, councils can get away with almost any sort of notification these days.

Thanks for that info - but I'm still a little confused.

I can see and understand why an 'invalid' notification won't necessarily stop recovery, but what about other errors.

My understanding of Judicial Review is that it is only open to challenge those aspects which are discretionary eg from whom recovery can be sought. Following Regs is not discretionary - I guess what your saying is that even if a HB Dept doesn't follow the procedures laid down in HB Regs when recovering an overpayment it doesn't matter as the op will still be recoverable once they have corrected these matters but the HB dept may give up in the process so still worth appealing?????

Or is there a possibility that you may win an appeal where the procedural failure is one that caused an injustice?? In my case the HB Dept didn't really pursue the underlying entitlement issue as well as they might with the info they had - and seeing as the decision was to recover the op from the landlord who had no control over the 'award' of underlying entitlement, the HB Dept may be passing a higher than necessary debt onto the landlord??????

Many thanks for any comments on this.

Sorry for the late reply....

In summary, a landlord's rights can be briefly summarised as follows:

1) a L/L is absolutely entitled to challenge the amount of the overpayment (including any issues as to whether the LA has applied underlying entitlement). The L/L is also entitled to ask who knew what when and what happened when.

2) target: this is the tricky one. For this aspect, a L/L still has a right of appeal, but the grounds are strictly limited to "Judicial Review" grounds (i.e. errors in law / the "target" decision is "Wednesbury" unreasonable etc).

Many LAs forget that L/Ls can challenge the substance of the overpayment. This is usually because LAs fail to separate the distinct issues of the assessment & recoverability of the overpayment and the completely separate issue of deciding on the "target" for recovery of a recoverable overpayment.

Hope the above hasn't added to your confusion.

Regards