Just lost a tribunal case and looking for authorities to justify a commissioner appeal.

Couple decuded to claim concil benefits last October when wife had to fill in an ICB claim following SSP expiry at 26 weeks.

LA requested ICB award details and tried to obtain via RATS in November but both claiamant and LA told waiting to be assessed.

At end December claimant notifies LA that she has summons for eviction. LA give a full determination within 5 days leaving out both SSP after October and the ICB claim.

Claimant realises early January that ICB not shown but expects that when it is shown she will get more benefit (had been told by LA when she applied that ICB would result in extra premiums).

Mid Jan ICB award finally arrives causing O/P's in HB & CTB.

There is no question of claimant contributing to O/P or realising that an O/P being made (although LA makes usual blanket statement they should have realised but gives no evidence why).

Tribunal found LA did not make official error therefore fully recoverable. (LA claimed they were entitled to assess on information held and could ignore pending ICB on grounds that it could have been refused).

Tribunal chair apparently did not consider anyone at fault except that claimant caused the LA to issue determination when claimant told them about eveiction procedings.

Expecting written reasons to make fascinating reading.

Whilst I'm waiting for written reasons - has anybody got any ideas / cd's that are rlevant. Any help gratefully received.

With my LA hat on....

There are a couple of arguments that could be used to support the LA position. They are required to make a decision so long as there is enough information to make a decision. If the situation had been that the LA were refusing to make a decision, but the clmt wanted payment, I can think of one or two ppl on this very board who would suggest that the LA were wrong to delay paying .

Although not directly reflecting the circumstances, there are two CDs which could support the LA position by way of analogy. In both cases, it was found that an LA's failure to suspend where there might have been an overpayment did not amount to official error. This was on the grounds that suspension may have caused undue hardship.

The CDs are:

CSHB/0718/2002 (para 42)
CH/0843/2005 (para 9)

Not especially helpful to your client, but maybe it gives an indication potential LA arguments.

Regards

One question springs instantly to mind. Why did they claim HB/CTB when SSP expired as short time higher rate of ICB is paid at the same rate as SSP. Was there any contractual sick pay that stopped or reduced?

Nevip - no what ended with SSP was WTC.

Kevin - thanks for the comments. I was a bit taken aback at the tribunal. I had expected that it was a simple mistake due to someone trying to clear a pending claim as quickly as possible. The claim was very complex since the family had REA, IDB, 4x DLA and another ICB award - and this is not counting the premiums!

I had thought that someone had made an understadable mistake and proceded with one ICB award and not realising another one was still being assessed. But they now say it was deliberately made. They knew that it was likely to cause an overpayment and did not advise or warn the claimant.

The question was - did it amount to an error?

It seems most unjust that claimants who have a very complex claim yet fulfil all evidence requirements on time should be penalised by having an O/P recovered because the benefit experts at an LA create a backdated payment knowing that the O/P is likely. If they really wanted to get some payment out quickly they could have used reg 93 (old reg91).
In fact looking at reg 93 again the LA was obliged to do this - the wording being.....shall make apayment on account...

For what it's worth, I agree that the net result is nuts. But, based on the info given, I'm not sure that the LA did much wrong in this case - reasoning as follows:

1) The LA had in fact made enquiries to ascertain if a further DWP benefit was due (even though not under any duty to do so)

2) The DWP had not made a decision on that benefit and it is not for the LA to second guess benefits it is not responsible for (I think there are one or two CDs that look at this point)

3) The LA won't generally have the knowledge to be able to determine if the DWP benefit was going to be paid (and, there are definitely CDs that suggest that LAs are not expected to have such knowledge)

4) The LA is under a duty to make a decision

5) If the LA had delayed and ICB had NOT been awarded, it is quite feasible for the LA to have been criticised for that delay.


The only other thought that came to mind was whether the DWP delay in processing the ICB might amount to OE. But, for that to work, I think you'd have to show that the DWP had delayed unreasonably. There was a relatively recent CD where the Inland Rev was found to have been at fault by delaying an award - see CH/0943/2003. Haven't had time to check for direct relevance, but there are two other cases which *may* be worth a read: CH/2903/2004 & CH/1561/2005.

Regards

this is a case where the difference in the recovery rules between HB and other social security benefit really shows up.

i don't know if this will offer any insights or just confuse matters, but with income support, failure of 'PODOP' is ahem...not uncommon...and overpayments were frequently split into two periods - the arrears period which was recoverable under sec 74 and the following period, where 'failure to disclose' had to be considered. it was accepted that a person couldn't report a fact until they were made aware of it, so where there was a delay in notification, those overpayments would not be recoverable in that period.

HB is only concerned with whether an official error caused the overpayment.

i think these problems have tended not to show up too much, because with an IB claim taking 3 months to award <sigh> more often or not there's an IS claim and passport to HB. when IB is awarded, the recovery is an internal DWP matter, and the LA is only interested then in the IS termination date and need for claim/assessment after the termination date. for obvious admin savings reasons, it doesn't have to get involved in what is effectively (by the recovery action) a voiding of the earlier IS award. Tax credits have brought this problem into sharper focus. i'm guessing that your client didn't claim IS because with the other income, and with the removal of children from the assessment, they knew, or were advised that they would not qualify?

it's understandable that your client would claim HB when SSP and WTC stopped - i tend to agree that neither the LA or the claimant are at fault here - it looks like the 'poverty trap' has shifted but still has a few snarls to hurl around. is it a very large overpayment?

The only real fault that I can see is in the apparent lack of communication between the LA and the claimant.

We have had similar situations where it has taken some time for a decision to be made on ICB and we have known that should the claimant be entitled to ICB, then they would be overpaid HB.

We explain the situation to the claimant and, normally, they want us to pay them now to prevent arrears/eviction and are happy to repay the overpayment from their arrears of ICB.

Thank you for all the replies. I too cannot see any clear way forward but being a good rep I will still wait and see what the written reasons turn up.

To be fair to the tribunal chair she was very apologetic to the appellant when refusing the appeal. She went out of her way to stress (i.e. dropped a great hint) that recovery was "discretionary" doubtless hoping that the presenting officer would deliver recomendations back to the LA. Unfortunately, this caused great embarrassment to both the chair and presenting officer when the appellant reported that recovery had started within 3 weeks of the O/P decision.

I suppose I can hope that the LA will show some compassion to an honest climant and some embarrassment of already taking an illegal recovery. However, through experience, I'm far too cynical to hold my breath on it.

My one hope, at the moment, (grasping at staws here) is reg 93 - payment on account. This case does seem to fit the criteria very closely. The LA was in my view obliged to consider it (the reg wording is shall not may). I know nearly all LA's avoid it like the plague and say they do not need to use it because if they have enough info to make a payment on account they can usually make a full determination. However the regulation does exist and cannot be ignored simply because inconvenient. In this case it would have, at least, warned the claimant that that further information could result in overpayment since this explanation is required by the regulation. I feel confident that this claimant would have immediately sought expert opinion if told this and could have avoided a retrospective O/P coming out of the blue.

Of course to get anywhere with this I will have to identify an error of law and try and persuade a commissioner. Still welfare advice repping is always a challenge.