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HB overpayment but property later reclassified from 3 bed to 2 bed
Hello, I’m helping a customer with a HB overpayment appeal. The customer was late in reporting her non-dependent daughter had moved out in 2019. She didn’t report this until 2021. This caused a £1500 overpayment as she was now seen as under-occupying her 3 bed house. She pointed out that her 3rd bedroom is very small and neighbours had had their 3rd bedroom measured and homes reclassified as 2 bed properties in 2015 but she had been out when landlord had visited the street. Her bedroom was measured in November 2021 and her home reclassified as a 2 bed via a variation of tenancy from her tenancy start date in 2002 and the rent charge remained the same. HBs have only amended her award from Nov 2021 as this is when they were notified but customer is asking for the overpayment to be cleared as the home has been reclassified as a 2 bed for the o/p period. Does anyone have arguments or caselaw that might be useful before the tribunal hearing next month ? any suggestions would be much appreciated, thank you
Who is the landlord? Is it the same LA that is paying benefit?
Think this might be better tackled via the rent account rather than the HB overpayment appeal. If it’s been reclassed as a 2 bedroom with effect from 2002, then there ought to be a change to the rental liability from that date. Whoever the landlord is and other things being equal* that ought to result in a significant credit on the rent account that could be used to get rid of any overpayment. If the landlord is the same LA as paying HB/rent rebate, it ought to be resolvable by adjustments to the rent account - i.e. the resulting credit to the rent account cancels out the overpayment. If the landlord is a HA or similar, there ought still to be a credit on the rent account, but on one view (a sensible view) that has resulted in an overpayment (the same overpayment at issue in the appeal) which is recoverable from the landlord. And the landlord ought to do the right thing and pay up.
Her HB was calculated on the basis of her being liable for rent on a 3 bed property with 3 people occupying. The retrospective reclassification of the property as a 2 bedroom doesn’t cancel out her failing to disclose that the daughter had moved out.
(*i.e. assuming that there aren’t rent arrears on the account for some other reason).
hello, thanks for the reply. Its housing association separate from the LA, HA that set the rent say because the makeup and size of the house is still the same the same rent applies and doesn’t alter from being called a 2 bed instead of a 3 bed. I think if the rent charge was reduced this would create a further overpayment. Thanks a lot
if the overpayment is from 2019, then the late notified change ( the change from being classified as a 3 bed to a 2 bed) needs to be applied for the period of the overpayment to apply underlying entitlement.
if the only shortfall was the SSSC restriction, applying U/ent would clear the overpayment
Have you asked the LA whether they have applied U/ent to the overpayment? and if they haven’t. why not? (there is no time limit for applying u/ent)
To be honest, I think the HA landlord is trying it on. I can understand why, but I think it’s a nonsense.
I’ve not encountered cases where a social landlord charges the same for a two-bed property as it does for a one, or the same for a two-bed as it does for a three. The logic of re-classification from a three-bed to a two is that the rental liability is also changed from the date of the re-classification. That is what has happened in every case I’ve encountered where a landlord has accepted that what was classed as a bedroom is not - and never was - a bedroom.
Of course, you’re right - a retrospective change to a two-bed with a corresponding reduction in rental liability would create a further overpayment. But it would also be an overpayment that should either a) be recoverable from the landlord rather than the tenant/HB claimant or b) a significant credit on the rent account (assuming no rent arrears) which could be used to repay the overpayment. And that is why the HA don’t want to change the rental liability.
Now the argument in the overpayment appeal could be your client simply saying that it was a two-bed all along, so that when the daughter left she wasn’t under-occupying - and that the landlord has now confirmed that, even though there’s been no change in the rent. But neither the LA nor the tribunal has to accept that - the LA can argue that the landlord’s designation is wrong and the tribunal can make its own finding of fact on the issue. If it decides it is a three bedroom, there’s only one result - an overpayment recoverable from your client (she didn’t disclose her daughter left, so the cause of any overpayment cannot be official error). Worth bearing in mind that the LA is very likely to be able to provide its own evidence as to how much this particular landlord commonly charges for a two bed property and how much for a three bed; if there is and has been a significant difference that will be grist to the mill if it does decide to take the position that it’s a three bedroom property…..
I think your client would benefit from some expert housing advice regarding the HA’s position on this one.
Is the HA Beyond Housing?
Is the HA Beyond Housing?
Good (potential) spot Elliot. I missed that.
if the overpayment is from 2019, then the late notified change ( the change from being classified as a 3 bed to a 2 bed) needs to be applied for the period of the overpayment to apply underlying entitlement.
if the only shortfall was the SSSC restriction, applying U/ent would clear the overpaymentHave you asked the LA whether they have applied U/ent to the overpayment? and if they haven’t. why not? (there is no time limit for applying u/ent)
thank you, I haven’t used the term underlying entitlement but will certainly will ask, thanks again much appreciated
Thank you, definitely plenty to look at
if the overpayment is from 2019, then the late notified change ( the change from being classified as a 3 bed to a 2 bed) needs to be applied for the period of the overpayment to apply underlying entitlement.
if the only shortfall was the SSSC restriction, applying U/ent would clear the overpaymentHave you asked the LA whether they have applied U/ent to the overpayment? and if they haven’t. why not? (there is no time limit for applying u/ent)
thank you, I haven’t used the term underlying entitlement but will certainly will ask, thanks again much appreciated
if the overpayment is from 2019, then the late notified change ( the change from being classified as a 3 bed to a 2 bed) needs to be applied for the period of the overpayment to apply underlying entitlement.
if the only shortfall was the SSSC restriction, applying U/ent would clear the overpaymentHave you asked the LA whether they have applied U/ent to the overpayment? and if they haven’t. why not? (there is no time limit for applying u/ent)
thank you, I haven’t used the term underlying entitlement but will certainly will ask, thanks again much appreciated
Underlying entitlement/reg. 104 isn’t going to assist if the LA argues and - the tribunal accepts - it was/is a 3 bedroom. Also bear in mind that the LA doesn’t need to argue that point for the tribunal to consider it; it has a duty to consider any issue raised by the appeal - i.e. any relevant issue that is apparent from the evidence. If that issue is one which is apparent from your posts on here, it’s very likely it’s going to be apparent to the tribunal.
Is the HA Beyond Housing?
Also - what’s the answer to this?
if the overpayment is from 2019, then the late notified change ( the change from being classified as a 3 bed to a 2 bed) needs to be applied for the period of the overpayment to apply underlying entitlement.
if the only shortfall was the SSSC restriction, applying U/ent would clear the overpaymentHave you asked the LA whether they have applied U/ent to the overpayment? and if they haven’t. why not? (there is no time limit for applying u/ent)
thank you, I haven’t used the term underlying entitlement but will certainly will ask, thanks again much appreciated
if the overpayment is from 2019, then the late notified change ( the change from being classified as a 3 bed to a 2 bed) needs to be applied for the period of the overpayment to apply underlying entitlement.
if the only shortfall was the SSSC restriction, applying U/ent would clear the overpaymentHave you asked the LA whether they have applied U/ent to the overpayment? and if they haven’t. why not? (there is no time limit for applying u/ent)
thank you, I haven’t used the term underlying entitlement but will certainly will ask, thanks again much appreciated
Underlying entitlement/reg. 104 isn’t going to assist if the LA argues and - the tribunal accepts - it was/is a 3 bedroom. Also bear in mind that the LA doesn’t need to argue that point for the tribunal to consider it; it has a duty to consider any issue raised by the appeal - i.e. any relevant issue that is apparent from the evidence. If that issue is one which is apparent from your posts on here, it’s very likely it’s going to be apparent to the tribunal.
Is the HA Beyond Housing?
Also - what’s the answer to this?
Thanks for the reply, yes its Beyond Housing
Thanks for the reply, yes its Beyond Housing
In that case;
1. None of what follows should be taken as any criticism of you as an individual or as in any way questioning your own integrity.
2. I am not so certain of integrity when it comes to your employer, however - I remain of the view that the proper way of dealing with this is in the ways I have suggested further up the page. And to repeat, I really do think your client should obtain some independent housing advice in respect of the issue of the HA re-classifying the property from a 3 to 2 bedroom, with effect from 2002, and with no corresponding adjustment to rental liability.
3. That issue alone makes this appeal messy. As I have already explained, it is a real possibility that both the LA and the tribunal may legitimately wish to explore the issue of whether the property is a 2 bedroom or a 3 bedroom. And the tribunal is in no way bound by what the HA/your employer might have decided.
4. The fact that your employer has already been subject to regulatory action for non-compliances relating to overcharging and classification (i.e. for something which it is a real possibility has also occurred in this case)
is something which makes it all the more likely that the LA and tribunal are going to go into this issue. And that means there’s a conflict of interest with your representing or advising this client in the context of this issue and this appeal - are you acting for the appellant or your employer? Certainly, if the question of your employer’s conduct comes up - as it is almost certain to - you can’t answer for/defend your employer whilst also properly representing the tenant.
I think you really ought to refer this out to an independent advice organisation that has no links with the landlord.
The tribunal may have the power to consider whether this is a 2- or 3-bed property but is that actually an issue in the case? In your original post you said the LA accept that this is a 2-bed, but only from the date they were informed. That doesn’t make sense to me as a proposition. If in fact it’s a 2-bed in 2021 then it was a 2-bed in 2019 - the room hasn’t shrunk in the meantime!
To raise an overpayment the LA has to have revised its decision or decisions from 2019 to 2021. It has to have a ground for an anytime revision like this, presumably ignorance of a material fact, namely the daughter’s departure. Your argument presumably is that that is not a a material fact, because the daughter’s departure did not trigger under-occupancy. If the claimant, the HA, and the LA all agree that this is a 2-bed there is no issue in the case about the number of bedrooms, the tribunal can ignore it as a possible issue, and the tribunal cannot have any evidential basis for finding that it’s 3-bed.
The tribunal may have the power to consider whether this is a 2- or 3-bed property but is that actually an issue in the case? In your original post you said the LA accept that this is a 2-bed, but only from the date they were informed…...
No - that isn’t what was said in the opening post;
Hello, I’m helping a customer with a HB overpayment appeal. The customer was late in reporting her non-dependent daughter had moved out in 2019. She didn’t report this until 2021. This caused a £1500 overpayment as she was now seen as under-occupying her 3 bed house.
- i.e. it wasn’t until 2021 that she reported her daughter had moved out. And that’s why there’s no overpayment after 2021.
To raise an overpayment the LA has to have revised its decision or decisions from 2019 to 2021. It has to have a ground for an anytime revision like this, presumably ignorance of a material fact, namely the daughter’s departure. Your argument presumably is that that is not a a material fact, because the daughter’s departure did not trigger under-occupancy. If the claimant, the HA, and the LA all agree that this is a 2-bed there is no issue in the case about the number of bedrooms, the tribunal can ignore it as a possible issue, and the tribunal cannot have any evidential basis for finding that it’s 3-bed.
Given what I’ve said above, I think it’s very far from certain that that the LA do agree it’s a 3 bedroom - at least in terms of this being consciously decided. It might simply have accepted the new 2 bedroom status from 2021 without thinking the implications of that fully through.
In any event, whilst a tribunal does not have to consider any issue that is not in dispute between the parties, it absolutely can (indeed must) consider any issue raised by the appeal - i.e. is apparent to it. That happens plenty, particularly where the parties have overlooked an important issue. In this case, the issue might be apparent to the tribunal from the papers. It might also be apparent to any tribunal exercising its inquisitorial function (and bolstered by its own knowledge) given that the HA is one of the biggest providers of social housing in the region and that the regulatory infringement I have linked to above has been widely reported - and reported very recently, at that.
Now even pretending for a moment that I was comfortable representing in circumstances where;
a) it really was my own employer’s failure to do the right thing that was the cause of the problem and
b) I could square my conscience with staying silent on that issue in the hope neither the LA or tribunal caught on
I really would not want to take a punt that the tribunal might not be live to the issue.
Ah yes, I may have read too much into the first post. But if the LA does agree that it’s a 2-bed, or doesn’t dispute it, and the claimant and the HA agree, I can’t see on what basis the tribunal can reach a different conclusion, even if they do think it’s a bit fishy.
I do agree on the conflict of interest point, however.
I understand what you’re saying. Maybe I could have been clearer about what I think may be the real risk here…..
Imagine this not entirely unlikely scenario: as you say, the LA might agree - or at least might not dispute - it’s a two bedroom. But it hasn’t really thought about that issue too much. Day of the hearing, appellant turns up and there’s a PO. Tribunal thinks the whole thing is a bit fishy - and says so. Or it just asks questions (“So the property has been re-classed as a two bedroom? From what date? And was there any reduction in rent as a result of the re-classification?”) sufficient to alert the PO that perhaps everything isn’t as it should be. PO asks for an adjournment as a result. Or doesn’t - but goes away and speaks to other relevant individuals. It’s a can of worms isn’t it?
That’s without the HA rep. having to sit there looking, at best, like a fish out of water.
And all entirely avoidable if the HA did the right thing.