In May, my client was visited by HB visiting officer and was advised that his HB and CTB were being overpaid.
It took the authority a further four months to revise his claim during which time the overpayments continued. It was decided that the overpayment prior to the date of the home visit had resulted from an official error of which my client could not reasonably have been aware and was therefore not recoverable. But because my client had been advised in May that he was being overpaid it was decided that the overpayment incurred between the date of the visit and the date of the revised assessment four months later was recoverable.
I suppose the decision complies with the letter of the law, but I doubt that the regulation under which recovery is being sought was intended to enable authorities to bail themselves out after overpaying benefit only because they have reacted to new information like a sloth on Mogadon.
My client is reluctant to dispute the recoverability because he is worried that the authority might change their mind about the non-recoverability of the much larger overpayment incurred before he was visited.
But if he were to dispute the decision would he be better lodging an appeal or pursuing a maladminstration complaint with the ombudsman?

Based on what has been stated, I don't see your client has anything to worry about in respect of the o/p BEFORE the visit - the LA has clearly stated that the clmt could not reasonably have been expected to be aware etc. The only way this part of the decision could be changed (by either the LA, or at Tribunal) would be if new evidence came to light in terms of your clients knowledge.

As for the o/p AFTER the visit, there is nothing to lose by going to appeal. But a Tribunal will only be able to consider recoverability - not actual recovery.

As for the issue of recovery, the initial route is to ask the LA to exercise discretion, citing the long delay in actioning. By all means make complaints / representations (taking it through to ombudsman if necessary), but I wouldn't *necessarily* expect any joy.

Just a word of caution: If the LA state, and can show, further (relevant!) investigations were ongoing during the 4 months of further o/p, there is a CD that *may* (but not necessarily) support the LA
Regards

My prev post appears to have self edited....!

The CD that *may* be relevant is CSHB/0718/2002 (para 42).

Regards

CSHB 718 2002 is available here via the osscsc.gov.uk website.

If he wants to dispute the recoverability he must appeal because the Ombudsman will not entertain a complaint of maladministration when there is an alternative (free) remedy available.

I dont think you have anything to worry about from CSHB/718/2002 as it seems clear that the LA already had the relevant knowledge from the outset.

You may have grounds to challenge recoverability in that the legal test is not simply whether or not your cleint could reasonably be expected to be aware of the overpayment, but whether he could reaonably be expected to realise he was being overpaid, at the time the payments were made.

"To realise" means "to understand fully or to be fully aware"

The comments from the visiting officer may be relevant, but why should those commentn make him fully aware that the ongoing payments were overpayments? Maybe someone else at the LA with more authority took a different view.

The evidence re the visitng officer looks thin and unless a written transcript was given to him, what evidence is there of what he was actually told?