Can anyone clarify for me - as everywhere i seem to look contradicts the last place - should the LA have recovered from our (landlord) shcedule in this case.

Tenant went into resi care permanently wef 2.9.08. we were not aware and have had no contact with tenant during this time. hb continued to be paid and rent payments were made keeping account up to date.
HB were notified 10 December by DWP and they cancelled HB claim from 7.9.08 causing overpayment. we were still not aware until 24.12.08 when tenants son (appointee) terminated the tenancy. Should they have recovered this from our schedule of Hb for other tenants or should it be from claimant?
thanks
Diane

Was it intended to be permanent on entry or did it become permanent later?

it was temporary at first until mid Oct - theyve now adjusted the Hb and paid up to 'permanent' date but i'm still awaiting a reply from them about recovering the remainder from us which I've challenged.

Based on the info given, the o/p is not recoverable from the L/L - only the clmt should be a target for both recoverability and recovery. Regulation 82(1) & (2) of the HB ((State Pension Credit) Regs applies.

It looks to me that at the moment there is no overpayments that is recoverable from an yone as no recoverability decision has been made that complies with the Tribunal of Commissioners decision R(H)6/06

Should I be surprised that there are LA's who have still not got the message?

hi
now had letter from Hb stating:-
'all payments are recoverable unless it can be shown that they ere caused by official error and the claimant or person who benefit paid to could not reasonably have expected to realise that it was an overpayment' clearly this is not an official error as the council werent informed until 5.12.08. Therefore the overpayment is recoverable.'

it goes on to say
'i am required to consider from whom to recover the overpayment & must consider Mrs X's circumstances as well as the landlords. Although both are liable to replay the OP I have decided that recovery will be made from landlord. This is mainly because of the fact that landlord received payment and actually have the amount to repay, but also due to Mrs X's age and circumstances'

I'm not really up on regs etc and cant find anything about this in Reg 82 quoted above - however i think Reg 101 para 2 (a) is significant and also HB circular A4/2006 para 13. The fact is WE didnt know she'd gone into resi care either so the tenancy continued and if we repay the Op the rent account will be left with substantial arrears. I have to appeal to tribunal but dont want to tie myself in knots quoting regs that i dont really understand. Any advice in laymans terms would be appreciated - particularly which are the most relevant parts of regs etc to quote on the appeal form. Do you think this will actually end up at tribunal or are they just trying it on in the hope we wont appeal? If that's the case can they change the decision before it gets to tribunal?
thanks again

The Council have still not issued the single recoverability decision required by R(H)6/06 as it is arguable that the overpayment is recoverable from the tenants appointee as the person who failed to disclose the change in the tenants circumstances. There is therefore still at present no overpayment that is recoverable from anyone.

It is similarly arguable that the overpayment is not recoverble from you because you did not fail to disclose the change (Reg 101(2(b))

"in a case where an overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact (in either case, whether fraudulently or otherwise) by or on behalf of the claimant, or by or on behalf of any person to whom the payment was made, the overpayment is only recoverable from any person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made"

The version I have cited is the latest version, and that version will apply given that no proper recoverability decision has been made.

It is the date the decision is made that is relevant, not the date the alleged overpayment occurred (see CH/3160/2007)

Mon 16-Feb-09 12:56 PM by stainsby

I cited the HB Regs, but I should have cited the HB (Persons Who Have Attained The Qualifying Age For State Pension Credit) Regs.

Its the same as Reg 101(2)(b) of the HB Regs but its Reg 82(2)(b) of the HB (SPC) Regs

You might also take a look at the DWP Circular A24/2008