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2002 LA sent OP notification for £2100, which we got them to agree to invoice tenant. second notification reserved right to come back to us if tenant failed to pay. Neither notification lists causes of OP only that HB been cacelled back to 2001.
2003 tenant evicted
2004 tenants rent arrears written off
2005 LA requests payment of OP as "exhausted all recovery methods from tenant"
I wrote stating I considered second notification in 2002 to be change of who recovering from, therefore 2005 request for payment was new decision, and could LA revise decision as harm caused in delaying coming to us as already written off arrears once and don't know where tenant is. Finished off saying that if response was had not changed who recovering from could they forward to appeal.

Response is threat to recover from blameless tenant.

Am I on to a loser or do I have any chance with this? If I do, how do I force LA to go to appeal?

My opinion is that all appeal rights are still open since neither notification gave the reason for the overpayment, and so neither is valid.

No recovery can be effected until a valid notification is issued (see Warwick DC v Freeman CA 31 Oct 1994 27 HLR 616). It can also be argued that recovery can not be effected until all appeal rights have been exhausted.

If the LA go down the blameless tenant route without following the proper procedures, then you could sue for restituttion in the Councty Court (see Waveney DC v Jones CA 1 Dec 1999)

Waveney and Jones is on rightsnet

http://www.rightsnet.org.uk/pdfs/Waveney_v_Jones.pdf

I will send Freeman to rightsnet for publication

thanks to stainsby .. warwick v freeman is now available here ...

http://www.rightsnet.org.uk/pdfs/Warwick_v_Freeman.pdf

If you want to develop your argument re the time limits for appeal see CP4479/2000 and CH1129/2004

CP4479/2000 is turgid reading but CH1129/2004 is much shorter and easier to read.

Thanks for that

What do you think of my argument that the second notification and an invoice to the tenant is a new decision to recover from the tenant, even if they state they reserve the right to recover from us? Can the LA send an invoice to the tenant but still consider recovery is from us as landlord?

HB Reg 101(2) does allow for recovery "as well as or instead of the person to whom the overpayment was made" so it does sem that LA's do have the discretion to change the target for recovery.

Having said that, the decision making process does not allow for such decisions to be made in advance ie the decision as to recoverability is a seperate decision to the decision as to the target for recovery (see Secretary of State v Chiltern DC and Warden Housing CA 26 March 2003)

A decision by an LA to change the target for recovery is a new decision carrying new appeal rights.

You have a right of appeal against the all the detwerminations embodied in the decision to recover from you and that includes the amount of and the recoverability of the overpayment. I think all your appeal rights are still open given that the notices do not appear to be valid.

I would make a formal appeal (whilst at the same time pointing out that the notices are defective) along those lines ie extend the appeal to include the amount of and the recoverablity of the substantive overpayment.

The burden of proof is on the Council to show that it is recoverable. Dont forget that a valid superession has to be made in every case and the grounds must be shown.

If the alleged overpayment covers more than one benefit period, then all the previous decisions must be validlly superseded. The original decisions must be identified, the superseding decision must be made (and notified), and the outcome overpayment decision similarly made and notified.

If the Council has not kept proper records you could win on those grounds.

You could also try a human rights argument under Article 6 (right to a fair hearing in a reasonable time)

Had a similar case a couple of years ago. Argued that initial decision was to recover from claimant, therefore new decision required if they wanted to recover from landlord instead, even where they had 'reserved the right' to recover from landlord. But Reg 79 only allows new decision where claimant requests it, relevant change in circs, or original decision based on mistake. Argued that only changes in circs that should be taken into a/c are ones that would affect the HB entitlement - failure to pay did not therefore fall into this, and there were, therefore no grounds to superseed their initial decision. I won - but this was 2 years ago, alot has happened in caselaw since regarding recovery from landlord then but I don't think any of this would change my approach now.


Also when did Reg 101 change? It may be that it changed after the date of the initial decision in your case and the 'old' version may therefore be applicable which stated recovery could be made from 'the claimant or the person to whom the ovepayment was made'.

Just lost a case where LA had not kept proper records - no record of the decision of from whom to recover - although full explanation given in LA submission - so where did I go wrong??

I think invalid notifications are a non starter these days - has anyone won an appeal recently on this basis??

I agree that appeals relying on the validity of notice/supersession argument are now far more dificult following the Tribunal of commissioners decision CIB4751/2002, but they are not impossible (see the later decision CIS3228/2003.)

In this particular case there is a good chance of winning because no reason at all has been given for the overpayment, and if the overpayments relate to various periods, I would certainly raise the validity of supersession argument and cite the old CD CSIS45/1990 in support.

There may be a further argument about whether or not the overpayments have been correctly identified as it may well be very likely that some may have been caused by inadtion on the LA's part after any changes in the claimants circumstances were brought to the LA's attention.

If the LA gives no reason for the overpayment, the grounds for the supersession/ revision have certainly not been identified, and it may well be that the person who made the purported supersession simply had a different opinion of the facts to that of the original decision maker. That is not grounds for supersession (see for example R(S)4/86, R(SB)4/92 para 11).

The first step will be to get the cae before a Tribunal. The next will be to force the LA to prove its case that there have been recoverable overpayments of the amounts alleged ( so called underlying entitlement under Reg 104 may be relevant, and also the action (or lack or action) taken by the LA to obtain information to determine it).

Notwithstanding the decisions as to the overpayments themselves, the decision as to the target for recovery may be actually the hardest decision to challenge given the constraints of the Tribunal of Commissioners decision R(H)3/04.

I lost one case recently in front of a Tribuanl chair who is also a Deputy Commissioner, but the amount was too small to bother taking to the Commissioners. I have a few larger ones pending that I would take further if I got a statement of reasons along the same lines

I am developing a standard submission template for overpayment appeals which invlove the target for recovery

Stainsby...

You have said that the burden on proving whether an O/P is recoverable rests with the LA...

I am preparing for a hearing at TAS on an O/P case at the moment, but I have found this quote from Comm. Jacobs in CH/3439/04 - (available from the Commissioners web site), which states at para 22:

"The tribunal was correct that the local authority had the legal burden of proving that there was an overpayment and that the decision had been properly made on revision or supersession. However, regulation 99(2) operates as an exception, for which the burden of proof is on the claimant"...

I am repping for a HB claimant (in Ealing) and would love to be able to reverse that position with some superior case law, (to be honest I don't think Ealing are aware of this decision, but I need to do my homework just in case)...

Any assistance would be appreciated...

I am aware of that decision, but Commissioner Jacobs has made several decisions re official error overpayments, some quite contradictory.

For example in CH4065/2001 at para 1:3 Copmmissioner Jacobs wrote:
"The legal burden is on the secretary of state to show recoverability, although the claimant bears at least the evidential burden to prove the case she alleges"
(I think his reference to the secretary of state rather than the LA is not much more than a typo)

In CH1176/2003 he remitted a case to another Tribunal because the original tribunal gave insufficent reasons for its conclusion that the claimant could resonably be expected to know that she was overpaid

He does not say much about the burden of proof in CH2554/2002 but he does have a lot to say about how the matter of a claimant being reasoably expected to realise that an overpayment had occurred should be approached.

Commissioner Trunbull in the reported decision R(H)1/02 made his own determination about when a claimant could resonably be expected to realise that there had been an overpayment. He was not explicit about the burden of proof but appears to hve followed the line Commissioner Jacobss took in his earlier decisions that I have cited.

In CH2554/2002 Commissioner Jacobs said that the old JR case R v Liverpool CC ex p Griffiths was not binding on him, but Griffiths still has equal status to decisions of a single Commissioner.

As far as I am aware, no HB overpayment case has been decided by a Tribunal of Commissioners, and the Court of Apppeal has not yet been invloved. We are left with at least some conflict among the CD's we have so far, although you might be able to argue that the reported decisions should be given more weight.

You can also rely on the wording of Reg 99(2) to support your case in that the verb "to realise" is not a term of art and so should be given its ordinary meaning.

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

The question to be considered is therfore whether or not the person concerned could be expected to fully understand at the relvant time that at least some of the housing benefit that was paid was too much, not merely that they had even a very strong suspicion that this was the case. (Griffiths is useful here)

In R(H)1/02 Commissioner Turnbull did say at para 8." ...it was of course for the Council to establish that there was a recoverable overpayment..."