My client has overpayments of HB and CTB from the start of her claim in Oct 2006. Her earnings fluctuate considerably and the overpayment has been worked out by taking the whole period from the date of claim into account ie Oct 06-March 07 and April 07 to Jan 08. I have a challenge to the 06-07 overpayment because the LA have used earnings for the whole year when she actually claimed because of a reduction in income, so my case is that only the income from the date of the change should be used.

My problem is with the 07-08 period. Her normal earnings were between £90 and £140 per week but there were two single weeks, 6 months apart, when she did relief work and earned over £600. There was also a week when she got a bonus, bringing her wage to £270 approx. These weeks have been included when averaging earnings. I have put it to the council that these weeks do not represent normal earnings and they agree, but they argue that as the client did not tell them about these increases she should be penalised by having these weeks included (they do not say that in so many words, but they also say that she provided pay slips only for weeks when her earnings were low). The wording of Reg 29 of the HB regs, and the guidance, is fairly vague: it says that, where earnings fluctuate, any period up to 52 weeks can be used to average income. I would like to argue that the weeks when earnings were higher should be excluded when averaging and that she would simply not be entitled to benefit for those weeks. I would also like to argue that, when calculating underlying entitlement for the overpayment, they should take account of the correct information as it would have appeared if the client had reported it at the time. Can anyone comment on this and/or point me to supporting case law?

I think that if the two £600 weeks can be shown to be completely atypical then they really amount to changes of circumstances, followed in each case by a further change back to the flucuating earnings of £90 to £140.

Reg 29 is vague but I do not think that these two "odd" weeks should treated as representative if they are 6 months apart. The LA has a point that your client should have reported these weeks as changes of circs, but then in that case they are rather acknowledging your point aren't they?

They should now go back and do what they would have done had the changes been reported at the time - I see no justification for treating these weeks in some other way just because the claimant was late reporting them.

Have a look at CH/1780/2005 where Mr Commissioner Jacobs has quite a lot to say about how earnings are to be calculated, and also about claimants contributing to the LA's own errors

I pretty much agree with Andy with a small addition. From the start of claim until the 1st week that £600.00 was earned there should have been no overpayment.

The increase in earnings should have been treated as a change in circumstances and a supercession decision made at that point with a change in income for one week. If as I would guess might be the case, your client was found to be not entitled for that week, the end of entitlement would require a new claim to be made to restart entitlement to benefit. Therefore any HB paid from the date of the first increase to £600 would be an overpayment, all be it in effect an overpayment of only 2 weeks benefit after “underlying entitlement” had been applied.

IMO therefore your client should only have an overpayment of 2 weeks benefit, but should need to re-claim to get ongoing benefit

You may be able to get round the need for a new claim by using the notion of the closed period supersession suggested by Mr Commissioner Mesher in CIS/2595/2003

At the moment there is considerable debate as to whether CIS/2595/2003 should be relied on. The potential difficulty arises out of CH/0269/2006 where it was found that "nil" entitlement cannot be superseded. It's fair to acknowledge that the facts of the two cases were different as were the administrative circumstances.

Nevertheless, until / unless the law is changed, or a further Cmmr's decision resolves the issue, my view is that LAs should obtain new claims. This is particularly relevant to overpayment cases where, without a claim, it may be possible to argue that monies paid were not by way of HB and, therefore, disputes & appeals fall outside benefits / Tribunal jurisdiction. In turn, common law rules apply and there are a variety of estoppel arguments that *could* render "overpayments" to be non-recoverable.