Clarifying who an HB overpayment can be recovered from?

Just wanted to clarify who a HB overpayment can actually be recovered from.

One of our debt advisers is working with a client and there is an HB overpayment which they’re looking to include in a DRO application. The council have stated that the overpayment can be recovered from either the client or their partner (who was their partner at both the time the OP occurred and now) but I’m not so sure that the client is actually liable.

I’ve had a look at Shelter’s excellent Help with Housing Costs handbook and wanted to check my understanding is correct before relaying it to our debt adviser.

From my reading of the handbook the overpayment can be recovered from the person/organization the HB was actually paid to (i.e. claimant, landlord, partner, etc), the claimant themselves even if not paid to them, the person who caused the overpayment (if different to the previous two) or from the claimants partner where you were a couple when the OP happened and when its being recovered *and* you’re on HB.

In our case it appears the partner was the claimant for HB and the HB was being paid direct to landlord (this needs double checking but appears to be the case). As the couple are now on UC rather than HB that would tend to suggest our client cannot have the HB OP recovered from them? Have I missed something or is the council wrong to suggest our client is liable?

Admittedly this is somewhat academic as the client is in no danger of being over the limit for a DRO so if its included or not doesn’t make much difference, but the principle of thing is important to me!

It doesn’t work quite like that.

The default position is that an overpayment of HB is recovered from the person to whom it was paid, unless regulations provide otherwise - see s. 75(3)(a) of the SSAA.

Reg. 101 (1) HB Regs provides for the circumstances in which the o/p is not recoverable from the person to whom it was paid;

- HB has been paid directly to the landlord under reg. 95 or 96
- the landlord has notified the authority they suspect there may be an overpayment
- the authority is satisfied that the cause of the o/p was not the claimant moving home
- that, if there is in fact an overpayment, the authority considers there are either grounds for criminal proceedings or there was a deliberate failure to disclose
- the authority is satisfied the landlord has not colluded with the claimant to cause the overpayment
- the landlord has not acted or failed to act so as to contribute to the period or amount of the overpayment

Those conditions are cumulative - they all have to be met in order for the default position (of recovery from the person to whom benefit was paid) not to apply to the landlord.

However, it is important to understand that even where those conditions are met, the result is not that the o/p cannot be recovered from the landlord - it only means that the landlord is not the automatic and sole target for recovery.

You then end up, if the conditions in para (1) of reg. 101 are not met, with having to consider para (2). And that says that the overpayment then is recoverable from either the claimant or the person to whom HB was paid* unless;

- the cause of the overpayment was misrepresentation or a failure to disclose, in which case the person who misrepresented/failed to disclose is the target of recovery

- the overpayment was caused by official error, in which case the target for recovery is the person who could reasonably have realised that the payments were an overpayment.

(* - and it’s important to understand this is a discretionary decision - the LA’s decision as to whether to recover from the landlord or the claimant in circumstances where the overpayment is recoverable from both, is not something which carries a statutory right of appeal).

*waits for HB Anorak to come along and tell me I have it all wrong*

Brilliant thank you, I don’t actually deal with that many cases where who is liable for recovery is a potential area of dispute as it’s normally pretty straight forward that it is recoverable from the client in front of me, so that’s a very helpful explanation.

(Assuming HB Anorak doesn’t come along and school both of us!)

Only one thing to add.  Reg 101(1) is obsolete, it is impossible to imagine a situation in which the landlord would need to rely on it without the claimant being caught by Reg 101(2) anyway.