We have a client who did not disclose to Inland Revenue until September 2005 that her son had started work in October 2004. She also did not disclose to the council that she was receiving Child Tax Credit until the same time. She now has overpayment decisions for both HB/CTB and CTC and has come to us after the time limit for appealing. She does not appear to have a case for appealing the CTC decision, and so will have to repay the money. Is there any way she can get the HB/CTC decision changed to take account of the fact that she did not in effect have the CTC? I was thinking of asking for underlying entitlement to HB to be considered, but can I do that at this late date? The HB/CTB decision was made before the CTC decision was received, so it appears that the DM did take the full circumstances at the time into account. I am told that there is no provision for amending HB/CTB in a case like this and I suppose that would make sense, given that it is the CTC received each week that is taken into account, and she did receive it, even though it is now going to be recovered. If there had been an underpayment of CTC, she would have received more HB/CTB and would not have had to repay anything when she received the backdated money. It seems harsh, however, that she has to repay the money twice, and as she is no longer in receipt of Tax Credits she will not benefit from an increase in HB/CTB while recovery of TCs is taken from ongoing benefit.

I had a client in similar situation last year who had TC and HB overpayment for same period, so double recovery did not seem at all fair and also my client was then in receipt of IS so entitled to full HB, so could not benefit from reduction to TC payments. I got help from a specialist in Housing Rights here in Northern Ireland who raised this as a policy issue with our housing benefit authority, NIHE. But since then I've changed jobs and he's changed jobs, so I'm not sure what happened to the issue. Is there anybody out there that can shed some light on what seems to be a grossly unfair case of double jeopardy?

To add insult to injury, our client is in receipt of DLA middle rate care and higher mobility and should have been in receipt of Income Support for the entire period of the overpayment, but she didn't claim it. Any chance of underlying entitlement for unclaimed IS, as this would give her entitlement to full HB/CTB despite the CTC?

I don't exactly want to be a devil's advocate here, because I do agree that the effect of this on people who have been overpaid the two benefits is unfair. And is also unfair to anyone overpaid tax credit, as this will already have led to a deduction in their HB/CTB at the time.

However the effect stems from the same principles that benefits claimants in most other circumstances. Because HB/CTB is calculated using the amount paid not awarded it stops those having their awards reduced due to overpayments (i.e. Tax credit mistakes) having a further loss. And it seems linked to the principle that when awards are made and backdated the backdate is ignored.

It seems unlikely you will ever have a situation where they count the award when that is to the claimants advantage, and the paid tax credit when it is not. And I would have to give a lot more thought to decide which would be better if you had to choose...

How about reducing Tax Credit overpayments to offset against the other benefit entitlement the client lost out, anything that makes the Inland Revenue (Sorry, Revenue and Customs) take more responsibility for their actions has to be good. (This is in an ideal world of course, can't really see it happening).

I don't normally get so theoretical, but as I am hanging around the office waiting to be dragged to a Christmas party - why not.

Victoria J.

There appear to be 2 separate strands to this situation. Firstly, the appeal time limit. Secondly, the calculation of Tax Credits in HB/CTB.

Time limit: normal limit is one month. However, a late appeal could be made. For a late appeal to be allowed, the clmt must explain why the appeal is late and; there must be a reasonable prospect of the appeal being successful OR it is in the interests of justice to allow the appeal. The fact your client's situation is somewhat self-inflicted is unlikely to be helpful, but there is little to lose by making a late appeal.

Calculation of Tax Credits: The issue of assessing for the period PRIOR to April 2005 is, in my opinion, wide open to debate. In my view, Tax Credits for such a period MUST be attributed to the period in which they were in respect of. It is only since April 2005 that specific provisions have been made for the manner in which Tax Credits are calculated. LAs will hate this post and will inevitably point to numerous DWP circulars. None of the advice, relating to using the "paid" amount instead of the "attributable amount", is supported in the HB/CTB regs.

One other thing. Underlying entitlement. At the time of making the O/P decision(s), did the LA take proactive steps to assess this? Even if the CTC situation was not known at the time, DAR 4(2)(b) allows the LA to revise the decision if it was made in ignorance of a material fact. So, in fact, the LA are wrong to suggest there is no provision to reassess the decision. However, the LA has discretion in deciding whether or not to reassess and there is no right of appeal if the LA refuse to revise - the only recourse would be JR.

The above has been offered objectively, although, I'm not all that sympathetic to the clmt given the circumstances.

Regards

Why did an overpayment of HB occur when the son started work? Was it due to a non -dependant deduction? You advised she is in receipt of DLA (care) -was this the case at the time he started work. Also you state she should have been in receipt of IS at the time -surely her income was therefore below her applicable amount at that time -therefore how could an o/p of HB occur?
Sorry if I am missing something but sometimes things are not as complex as they first appear !

The overpayment occurred because she continued to receive Child Tax Credit after the son started work. She did not tell TCO until nearly a year later and did not tell the council that she was getting Tax Credits. There is no non-dep deduction. Her income with the tax credit was above her appl amount for HB, but she was entitled to IS because the child tax credit is not included in that assessment.

Sorry if I didn't make that clear.