We don't do many benefit appeals, so I am feeling a bit unsure about this one. My client won a previous appeal to have housing benefit backdated. She provided all the evidence of income that she was asked for. The wage slips used to calculate her income were lower than her usual wage and the council have overpaid her. This is despite her regularly giving them her payslips. They did not query her wages with her or ask her for more evidence.

We are arguing this is official error as she provided all the information requested and had no idea that she was being overpaid. I have got CH/2554/2002 but am not sure how helpful it is going to be. Our client has been ill and does get easily confused - will that be helpful to our argument? any pointers or advice would be gratefully received.

Also, if we are unsuccessful, we want to ask for them not to recover the overpayment on the grounds of hardship - do we take that up at the tribunal, or afterwards with the local authority?

Just on your last point, if the tribunal finds that the OP is recoverable, you will have to take up the issue of whether it is recovered with the LA. It is a matter of LA discretion, not a tribunal matter.

Hi ElizabethL,

the DWP HB/CTB overpayments guide is actually quite helpful. Paragraphs 2.70 - 2.105 cover overpayments and official error. Its on-line - click on chapter 2.00 'overpaymemnts and recoverability' at

http://www.dwp.gov.uk/housingbenefit/manuals/overpay/index.asp

The situation you describe seems to be official error in that the LA did not act on the change of circumstances properly reported to them by the claimant. This means the issue is whether 'the claimant or a person acting on his behalf or any other person to whom the payment is made could not, at ther time of receipt of the payment reasonably have been expected to realise that it was an overpayment', HB reg 99(2).

If you haven't already done so it is well worth doing a letter to your LA making the case that the overpayment is not recoverable because it is the result of official error and the claimant could not reasonably have been expected to realise they were being overpaid. It is worth putting in quite a bit of detail as you may find the LA will accept your case without it going to appeal. good luck ... jim

ElizabethL...

I took a case almost identical to Commissioners on almost the exact same point... (CH/672/2003). However, I was acting for an LA... And even though the O/P was all LA error, the o/p was deemed recoverable... Even though the O/P was caused after the HB claimant had declared everything (and more), that could be expected of her, and even though the LA calculated HB/CTB in error on two separate occasions, (two for HB & two for CTB making 4 errors in total)... the O/P remained recoverable…

HB O/P's are completely different to O/P's in other social security jurisdictions... HB regulation 99 (2) states that LA error (official error), O/P's remain recoverable, 'unless the person receiving the payment could not reasonably be expected to know they were being overpaid, either at the time of the payment, or on notification’.

In the main in these cases, you need to be able to show why your client could not be expected to know of the O/P... The LA will (presumably), rely on the fact that your client should have read the letters that were sent to her, stating how her HB had been calculated, and the income used in those calculations... I would suggest that is where you might want to 'attack' the LA's decisions... Commissioner Henty did however indicate in CH/672 that it might be possible for LA error o/p's to be 'non-recoverable' if the HB claimant suffered from poor eye-sight, or some other disability which prevented them from being able to fully understand the letters issued by the LA, (though these comments are obiter, they might offer some assistance?).

Though CH/672/03 is a decision that LA's are more likely to rely on, if you can find the 'reverse argument', (and or use the comments of Commissioner Henty as above), it might offer your client some assistance? I have sent CH/672/2003 to Shawn in case he wants it for publication…

PS - Also meant to say, as agreeing with what has been stated above, TAS cannot make decisions as to how the O/P is to be recovered... A Tribunal can only decide recoverability... How the O/P is to be recovered is a decision for the LA, and LA alone, (though you can obviously challenge decisions regarding the level of recovery through an action for JR)...

As also noted above, the DWP's HB O/P manual is unusually helpful regarding the discretionary write off of HB O/P's...

See http://www.dwp.gov.uk/housingbenefit/manuals/overpay/parts/04reco_i.asp#eeee

You might also be able to take any complaint regarding hardship with the LGO, if the LA seek to recover the O/P at 'too high' a rate...

Thanks to HBSpecialists, CH/672/2003 is now available on rightsnet.

Requests for LA's to not recover a recoverable overpayment, unfortunately are not reserved for those very rare cases where it might be appropriate.
Needless to say, everyone is trying this as a matter of course.

Which is a shame, as the requests are often taken with a pinch of salt these days, such is the regularity of them.

My questions in this case would be:

1) why on earth would the LA go to the trouble and expense of an AT if they were then going to consider writing it off? If they did do this, as tax payers, we'd want to know why.

2) The discretion not to recover, should be used in very limited circumstances. If your client is working, why would she not be in a position to make repayments?

Thanks for all the help and suggestions. The hearing was yesterday, but as it ran over and there were other cases waiting, the decision is being posted and we haven't got it yet.

The chair seemed to accept that the LA had made errors in not querying the payslips they were given and in not providing any notification of benefit for several months after the claim. However, it still needs to be shown that it was not reasonable for the claimant to have known she was being overpaid, so I am not sure how it will go.

The reason I was considering asking for any recoverable payment to be written off is because she has no other income apart from tax credits (£42.00 pw). As a full time student lone parent with a 16 yr old, she cannot claim JSA or IS and she is postgraduate, so gets no student funding. She lost her job and has not worked since as she is trying to finish her course. She already has multiple debts, including priority debts, so having to repay an overpayment would cause severe hardship. As I said, I don't have a lot of experience in this area, but assumed this case would be appropriate for requesting a write off. Is this not the case?

Well, the thing you need to ask yourself is whether any of the other creditors would consider writing off their debts to help reduce her overall level of debt?

I doubt it. So why would an LA look at their own debt any differently? We have to be answerable to tax payers, just as other are to shareholders.

Sure, they should look at reasonable rate of recovery or a period of grace to allow the debtor chance to clear other debts, but personally, I would not chose to write off a debt, simply because the person has other debts. The main instances when I'd consider it are for example:

The debt is too small to even attempt to recover.
The person has died and we know there's no estate.
The person is terminally ill
The person has absconded / emigrated and we are unlikely to trace them

If requests were reserved for these types of servere circumstances, you have a far better chance of success, rather than mudding the waters with lots of very optimistic / unrealistic attempts.

What a charming and caring attitude you display, Paul, in relation to people finding themself in debt, even though they have attempted to follow instructions from an LA who appear to have played a significant role in this particular overpayment arising.

Your main instances of when an o/p will not recovered can be summated as either the o/p is very small, or the person concerned is dead, or as good as. Pleasant indeed.

Your analogy between shareholders and taxpayers is, quite frankly, rubbish. Companies exist to make profits for shareholders, local authorities exist to serve the residents of a borough.

If a residents of a particular borough chooses, as is their legal right (s75(1)&(2) Social Security Administration Act 1992), to query the necessity of any particular o/p being recovered, I would expect the officer acting on behalf of the LA to consider this request properly, having regard to all of the claimants circumstances (as directed by official guidance), rather than bleating on about "optimistic attempts" made by claimants or reps looking to ease the financial strain that many clients find themselves facing.

May be you should have a read of the official guidance in fact - in case you don't know where it is, follow this link http://www.dwp.gov.uk/housingbenefit/manuals/overpay/parts/04reco_a.asp , a section of which is produced below.

4.430 Just because an overpayment is recoverable, it does not necessarily mean that it must be recovered, the law states that such overpayments are recoverable, not that they must be recovered.

4.431 A recoverable overpayment may be recovered at the LAs discretion. If an LA has a 'blanket policy' to recover all recoverable overpayments, the policy would be open to legal challenge.

4.435 By its very nature, discretion cannot be prescriptive and therefore there are no hard and fast rules or examples that can be given. Each case must be decided on its own merits.

4.436 However the following situations should be considered

· financial hardship
· terminal illness
· senility or low intelligence
· severe medical conditions

4.438 In order to establish the claimant is suffering financial hardship it is advisable to do an income and needs comparison and possibly interview the claimant. Hardship is proved when the income, minus priority debts, gives a figure of more than £8.40 below the applicable amount. This figure is uprated annually and is based on the maximum that the DWP recovers from IS or JSA(IB).

4.439 Priority debts include

• rent, CT, utilities, eg gas, electric, water - ongoing weekly amount to pay, plus any arranged weekly repayment of arrears
• fines - any weekly repayment amounts
  
• medical expenses - although these are not priority debts as such, if it can be shown that the claimant has high prescription charges/travel costs to hospital, or high diet costs, which must be maintained for health reasons, all relating to a long term illness, then they may be considered priority debts

• the health of the claimant and members of the household
  any savings the claimant has
• the level of disposable income in comparison to people receiving IS
• whether they have tried to make an arrangement for minimum repayments
• whether they have any priority debts,
• whether a non dependant can contribute to other household expenses
• whether it would be feasible to postpone repayment of the debt rather than write it off
• writing off part of the overpayment rather than all of it
• whether the claimant has contacted their other creditors to reduce repayments in order to repay this debt

I am not being uncaring, Paul. I am making the point that requests against this area of discretion are attempted too frequently, often in cases that don't warrant such course of action.

Exactly how does writing off lots of debts without good justification best serve the residents of the borough?

I am well aware of the DWP guidance as I was part of the focus group that wrote it.

The dedision we are considering is whether the LA attempts to recover the recoverable debt or chooses to write it off at the outset. Like I have said, in this type of situation, I would be looking to provide a period of grace as oppose to write off, by considering whether the persons financial situation is likely to improve. Is that not a caring thing to do, whilst also best serving the residents of the borough?

6, 12, 18 months down the line, they may be more than capable of repaying. If their situation hasn't changed after the period of grace, the decision can be reviewed. The financial situation is changeable, the others I have listed aren't.

The section of guidance also states the following:

4.440 Other factors you may wish to consider in such a scenario might be

 the health of the claimant and members of the household
 any savings the claimant has
 the level of disposable income in comparison to people receiving IS, see above
 whether they have tried to make an arrangement for minimum repayments
 whether they have any priority debts, see above
 whether a non dependant can contribute to other household expenses
 whether it would be feasible to postpone repayment of the debt rather than write it off
 writing off part of the overpayment rather than all of it
 whether the claimant has contacted their other creditors to reduce repayments in order to repay this debt

One other point about your post:

If you believe that our service as a recovery team does not need to make a profit, then you clearly aren't in tune with modern day local gov.

The day we cease to be profitable is the day our service is out-sourced to a debt recovery agency. Something which is a constant threat. So I take offence at your rather critical view of that analogy.

Just in case anyone is interested, I have received the decision and we were successful. The overpayment is not recoverable, so thanks again everyone for all your helpful suggestions, I do really appreciate it.

excellent and not unexpected good news, Elizabeth. i think we were all holding our breath...
well done and thanks for letting us know.

jj