I picked up 2 of these cases on the same day.

Both claimants were in receipt of HB/CTB - one was getting them as in work benefits the other was receiving them while included on her husbands JSA claim. Both women are EEA citizens. Both claimed IS as lone parents (when her work ended / following a relationship breakdown, respectively).

Both IS claims have been denied as having no right to reside. This seems _possibly_ appealable for the first woman who had worked for over a year. Unlikely to be overturned for the second who has not worked, and who completed her own GL24 stating that she was obviously unable to work as she had to look after her son.

HB has then decided that the women do not have right to reside and stopped benefit. They have also backdated this decision to the date of the DWP decision and made overpayment decisions (in one case, the other women has been verbally informed and is waiting for paperwork).

I just cannot see how this can be a recoverable overpayment. HB were aware of the women's circumstances at all times. The DWP decision itself is not a change of circumstance (and is surely not in any case binding on HB).

Can anyone see any reason this would be allowable for them to recover in this circumstance ? Or any really strong evidence they can't (I think I can make a general argument but if we could come up with something strong enough we might be able to get them to change policy - if I got 2 of these there must be many such decisions).

Victoria J

I see that one of them was getting H.B as an in work benefit. Is her husband working, if so, she is the wife of an E.U worker regardless of seperation and should be entitled.

Thanks - I did think about that but she isn't in touch with him. She thinks he's still in the UK but has no idea (and no evidence) as to whether he's working. I did advice including it as ground for appeal though. The other woman (the weaker case) her husband is still receiving JSA as far as she knows - which suggests he has been deemed to be an EEA worker as far as right to reside - even though he isn't working. (No idea whether you can make that argument, seems to be stretching it a bit).

For ongoing benefit I have advised them to claim JSA where they are much more likely to accept people as being "workers". I'm pretty sure the first woman will get it at least.

Right now I just want to know where they stand with the HB overpayments.

Victoria J

It isn't at all uncommon to see people who have got HB/CTB and not IS even on facts where there is very little hope of an R2R argument (eg, lone parent never worked and not looking for work), and that way round is commoner than the other, since DWP is at least marginally better at gtting the law right than some councils, at least when it's disallowing correctly.

But essentially the law is the same for both so if there is no R2R there has been an overpayment. Assuming full disclosure of acts on the claim for benefits then clearly the OP results from official error so the only question is whether the claimant could have been expected to recognise they were being overpaid and why should they? At least until they get the decision from the DWP which bless them they want to appeal saying "look this can't be right I'm getting housing benefit."

So unless they can prove defects in the claim form like not answering questions such as "how long have you been in the UK" or "what's your nationality", looks like not recoverable to me.