Good afternoon

My client has an overpayment of HB which is being recovered in the normal fashion from his ongoing entitlement.

He was paid after his tenancy ended despite informing the local authority that he'd moved out. Becuase his account could not receive HB payments, his payments were made to a third party - his friend who passed money to him so he could pay his LL.

The LA insist my client must repay the overpayment as he should have been aware that he was receiving money he was not entitled to.

Given that money was paid to his friend who now lives in Spain and with whom he has no contact, could I claim that it is unreasonable for him to be expected to know whether or not he received HB payments to which he was not entitled?

Thanks for your help.

A bit more info needed:

- When, in relation to the end of tenancy / occupancy, did your client notify the LA?

- How long was it between the time the LA were notified of the change and the date on which the LA acted on the info?

Mr Commissioner Turnbull considered the issue of whether or not someone could realise her was being overpaid in R(H)1/02 (in that case it was a rent rebate), but it was condiered again by Mr Commissioner Jacobs in CH/0939/2004.

He wrote at para 5:

"5. In dealing with this issue the tribunal should have considered the question: should the claimant have known that the landlord was continuing to receive housing benefit for him? The tribunal did not deal with the information available to him that might have shown whether the landlord was continuing to receive payments. "

The issue in the present case is similar in that it has not been established that your client was fully aware that payments continued to be paid into his freinds account

As ever, Stainsby and I are jousting over the "fully aware".

The wording of HBR 100(2) makes it clear that an o/p is recoverable if the clmt could "reasonably have been expected to realise... etc". As has been analysed in CH/0858/2006 (para 29) & CH/1307/2006 (para 15), the clmt does not have to ACTUALLY realise. It is sufficient if the clmt could reasonably have been EXPECTED to realise.

Bear in mind that the above consideration only arises in any case if the o/p has been caused by an LA (or DWP etc) error. At the moment, it isn't clear that there has been an error.