Hi,

My reasoning ...

HB being recovered, according to decision "because DLA stopped".

IS stopped at same time (presumably for same reason but difficult to tell at this distance).

HB knew about IS stopping (as they get told this).

Therefore not recoverable as client could not fail to disclose a fact which they already knew.

Seems pretty worth a try to me but ...

Would they stop the whole claim (because IS stopped) and force claimant to make new claim and if not why not?

Help... I am having a real problem understanding your post...

Who was getting DLA... If a person was on IS, then they were already getting max HB, so DLA ceasing would in theory make no difference... how ever, DLA can effect non-dep deuctions, or DLA ceasing could cause IS to end as the effect is to lower the applicable amount...

Did HB cease because IS ended, and if so, on what basis was HB paid after it ceased, (as an income based claim, with a DLA amount included in the AA?)...

If you can provide some more info, I be glad to proffer an opinion...

I'n thinking of a claimant who may be getting DLA/IS/IB/HB, then DLA stops and applicable amount goes down, IS stops and HB reduced as applicable amount now less than income from IB.

If HB made o/p decision on basis that DLA stopped, does bringing the fact that IS also stopped into the mix make this claimant's position worse (because HB should have stopped, rather than continuing as an apparantly income based claim)?

I get the feeling that you're thinking about the Hinchy Court of Appeal judgement, where it was held that the claimant had given information to one "bit" of the DWP and so had in effect disclosed same to another "bit". Funnily enough I think that case involved DLA and IS too.

It is important to understand that the effect of the judgement is limited, and has not been regarded as applying to communication between local authority HB depts and DWP. There is a clear duty on the claimant to report changes to the Council directly and not to rely on DWP to do so (and you might be wrong in assuming that they did in this case anyway).

There might well be other issues in your case which I am not aware of but I doubt that the "Hinchy" approach will work in this case.

Yes, I understood Hinchy can't be relied upon with HB, and I interpreted that to mean that just because a claimants tells the DWP something, they can't assume that the local authority knows because the local authority is separate from the DWP and so it's not an analogous situation.

I thought this would be a different argument. I'm NOT saying that a claimant told DWP and therefore, due to Hinchy, the local authority is also DEEMED to have known.

Rather, a mythical claimant told the DWP about DLA ceasing, and as a result IS stopped. We know that the local authority is IN FACT notified by the DWP that IS has stopped.

Therefore they were already aware of info that should have told them that the HB claim was incorrect. Therefore o/p not recoverable.

I can see two dodgy bits: I may not be able to prove in individual cases that the DWP did notify the LA. On the other hand, it is their general practice so I think I could argue that they did, on the balance of probabilities, do this.

The LA may argue that the material fact is DLA stopping and not IS stopping. The fact they were aware of the later doesn't mean they were aware of the former.

Say for the sake of discussion I don't mind trying the argument. If I make the argument am I in danger of them saying that actually, I'm right, and the HB claim should have come to an end completely at the beginning of the o/p period (because IS stopped), leaving claimant with a huge gap, which would presumably have to be plugged by a request for a backdate, except a backdate can only cover 52 weeks and the period of the o/p may be longer) or should they treat the o/p as if claimant made a new claim at beginning of o/p period and calculate what the entitlement would have been if they'd been in possession of the material fact (which is what they would do if the o/p occured because DLA stopped, because that wouldn't bring the claim to an end).

In short, would I be in danger of making a claimant in this position worse off?

The major flaw in your argument is that for an OP to be unrecoverable it has to be solely the result of an official error. If the LA and client were equally to blame then the OP should still be recoverable. The issue isn't really about failure to disclose it's about who caused the OP - what you have to show is that the client wasn't at fault at all. Depends on all the circumstances of the case (how long it took DWP to notify, how long it took LA to act on notification, whether client advised by DWP that they would notify LA, etc.)whether you can argue that successfully.

I don't get your last point. Either HB stopped or it didn't - it can't simply be cancelled retrospectively.

Even if the LA knew that IS stopped, the overpayment is likely to be recoverable -

the only way the hypothetical claimant could avoid recovery would be if the LA failed to take action on receipt of notification of the end of IS entitlement AND the claimant could not reasonably be expected to realise that he was being overpaid - this is unlikely to be the case where the claimant's IS has stopped.

On the second point, a fresh claim under the new circumstances would have the effect of reducing the overpayment by any underpayment in accordance with regulation 104.

Shabir - thanks for this. I'm not sure it's reasonable to always expect claimants to know the link between IS and HB, is it? Would the individual circumstances of the claimant come into play here (i.e. would the argument be worth while making for a client with poor mental health, for example?)

Major flaw in my argument (do you mean there's more than one!?! ):

Thanks for this - I take your point entirely.

Last point:

In the hypothetical present circs, stated reason for o/p was loss of DLA, HB continued but a premium was removed from the calculaton, meaning less benefit was due than had been paid - hence o/p.

I was thinking if the reason for the o/p was changed to IS stopped, the correct thing to happen would be for HB to have stopped at begining of o/p period. A new claim would have to be made in order for underlying entitlement to be calculated. I wasn't sure if the new claim could be addressed to any period of time or whether it was restricted to 52 weeks in the normal sense of a backdated claim.

Reading reg 104 (thanks to the person who pointed me to it!) "the relevant authority shall deduct any amount of housing benefit which should have been determined to be payable in respect of the whole or part of the overpayment period" it seems that underlying entitlement is assessed for the whole of the o/p period, however big a period it is. (Sure someone will tell me if I'm reading this wrong ...)

My two pennith worth is that HB could not have been lost for the reason of DLA ceasing, whatever the LA have said in their letter (this might well give you a 'mute point' on which to challenge but any 'victory on that point will be ‘picric')...

HB is awarded on the basis of income, the only three times an LA can (must) ‘override’ the income capital of a claimant are in cases where the claimant is on IS, and/or JSA (IB), and/or GPC starts or ends… DLA is not one of those circumstances… so the position in law is that an overpayment will be created as a result of IS ceasing, not DLA (DLA was the cause of IS ceasing, but the DLA ceasing could not affect HB, as the HB was based on the IS… Oh god.. I know what I mean, but I hope you do too…)…

Anyway, so I have taken from your newer posts that this is also a ‘post abolition of benefit periods’ case… i.e. IS ceased post April 04… and the notification of IS ceasing arrived at the LA more than one month after the IS terminal date?

This is an important point… If the C of C was notified within the one moth time period, there is no need for reg 104 considerations, as the change is applied from the Monday following the date of change… there is likely to be an O/P, though I would guess relatively small, and in law, you would have one heck of a job to make it non-recoverable… (your best bet would be to argue on cost grounds to the LA for a discretionary write off)..

If notified outside of one month, then the LA are relying on the late change of circs rules… If the LA are being ‘officious’ and say the change was notified a few weeks late, any appeal should result in the late change being allowed, (I can’t see how any LA appeals officer would allow a late change of circs to progress to TAS unless at least another calendar month had elapsed)…

So I would seek to challenge on reg 104grounds, but only as a secondary position… My primary position would be to allow notification of a late change of circs, and back that argument up with whatever I could find to show ‘good cause’ for the late notification, (N.B. this would not be the same ‘legal good cause’ for backdating, but in practice, if you can show ‘good cause’ for late claim, the same proofs should be accepted for late change)…

Have just realised the length of this post, so will say no more… but if you need anything clarified… please post a question by way of reply…

Much of the guts has been covered in the thread as it stands, but I'd just offer a couple of points for emphasis and observation.

Although the DWP do notify LAs of IS/JSA start/stop dates, there is no legal requirement for them to do so. While the notification happens more often than not, I would strongly disagree with the notion that the DWP send notifications automatically in every single case. At least not in my experience....(assessing, compiling appeals submissions, liaising with DWP etc).

In any case, as has been touched on elsewhere in this thread, the clmt (and/or the person receiving HB where they know of a change) has an overriding duty to notify the LA (in writing) of a change in circs. I appreciate the point about clmts not necessarily knowing the link between HB and other benefits, but most HB/CTB notification letters do comply with Sch 6 so far as it goes in relation to the duty to notify changes to the LA. That said, it's still amazing how notification letters can be so ambiguous. All LAs need to do is make a short addition to the change of circs requirement...such as:

"if you have a change in circumstances (examples listed etc), you MUST notify the LA (list offices? / sections?) in writing as soon as possible. Even if you notify someone else, you still have to tell the LA as well".

Until / unless LAs use notification letters that make a claimant's duties clear, the arguments about who told who when & why will long continue.

Regards

Since all income and capital is disreagraded when IS is in payment, the first material fact to be considered is the receipt of IS.

If the LA already knew that IS had ended, any inactivity by the LA regarding that issue will make the overpayments official errors (see for example CIS222/1991)

Once it has been established that the overpayments are official errors, then the overpayments will not be recoverable unless the claimant could reasaonably be expected to realise that the payments were more than (s)he was entitled to.

This may hinge on whether or not the claimant could be exepcted to understand the niceties of the premiums whether it be the disability premium or the severe disability premium .

I dont think that the LA would be able to successfully argue that the claimant could have contributed to the error where a passporting benefit is involved

Just thought I'd throw tihis into the mix.
If the claimant knew or reasonably realised that he/she was being overpaid, are they commiting benefit fraud?

You will have a Hinchy arguement that you can use if DLA stopped and the DWP stopped IS retrospectively at some later date.

The overpayment of IS will be an official error, and the knock on effect will be to make the overpaid HB/CTB for the same periods officical errors.

This is because the claimant could only reoprt a change in circumstances (ie the ending of IS) when it actually happens.

The DWP error is not the late notification of the end of IS entitlement, but the continued payment of IS when there was no entitlement.

The DWP would have the responsbility for the continued payment of IS, and the claimant could not have contributed to it, and there was no failure to disclose

Underlying entitlement only needs to be offset if the overpayments are shown to be recoverable, and it must be offset for the whole of the overpayment period. There is no need for a claim to be made.

If the overpayments only relate to periods after April 2004 (or October 2003 if the claimant is over 60), then there would be no need for a fresh claim to be made after IS ended. A superseding decision could be made and the award amended as a simple (sic) change of circumstances

Can I just check what you're after here?

You have a theoretical customer that was getting IS/DLA and Hb (maybe Ctb).

Because IS/DLA ended Hb was re-calced (revised or superseded) to give an overpayment of Hb.

Assuming I'm still with you and this was post April 2004, are you after
non-recovery of this o/p?

Is this solely because you feel this should have been dealt with by communication between Dwp and La ?

Has this (theoretical) overpayment been reduced by underlying entitlement?