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Top Housing Benefit & Council Tax Benefit topic #8157

Subject: "Recovery of Housing Benefit overpayment - Court enforcement" First topic | Last topic
Derek
                              

CAB Adviser, Esher CAB
Member since
09th Mar 2004

Recovery of Housing Benefit overpayment - Court enforcement
Thu 02-Jul-09 11:11 AM

I've not come across this before, & wonder it anyone can throw some light on it. Client has HB overpayment - has not been able to pay it off. She receives a Court form (N322) - Order for recovery of award. This gives LA power to use Court enforcement procedures (attachment of earnings; bailiffs etc.) to recover the debt. Client has not had any other Court documents.

The Court tells us the Order was applied for by LA on the basis of a decision by a Tribunal. Client knows nothing about any Tribunal. Court also says there is not a CCJ - no previous Court proceedings at all.

The result is LA can enforce without Client having any opportunity to dispute in Court whether the money should be recovered from her.

Is this a normal LA procedure? Does the reference to a Tribunal mean anything other than the usual LA decision making procedure?

Any comments/advice gratefully received.

  

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Replies to this topic
RE: Recovery of Housing Benefit overpayment - Court enforcement, pete c, 02nd Jul 2009, #1
RE: Recovery of Housing Benefit overpayment - Court enforcement, nevip, 02nd Jul 2009, #2
      RE: Recovery of Housing Benefit overpayment - Court enforcement, Derek, 02nd Jul 2009, #3
           RE: Recovery of Housing Benefit overpayment - Court enforcement, nevip, 03rd Jul 2009, #4
                RE: Recovery of Housing Benefit overpayment - Court enforcement, jmembery, 03rd Jul 2009, #5
                     RE: Recovery of Housing Benefit overpayment - Court enforcement, jmembery, 03rd Jul 2009, #6
                          RE: Recovery of Housing Benefit overpayment - Court enforcement, nevip, 03rd Jul 2009, #7
                               RE: Recovery of Housing Benefit overpayment - Court enforcement, jmembery, 03rd Jul 2009, #8
                                    RE: Recovery of Housing Benefit overpayment - Court enforcement, nevip, 03rd Jul 2009, #9
                                    RE: Recovery of Housing Benefit overpayment - Court enforcement, stainsby, 03rd Jul 2009, #10
                                         RE: Recovery of Housing Benefit overpayment - Court enforcement, Derek, 03rd Jul 2009, #11
                                         RE: Recovery of Housing Benefit overpayment - Court enforcement, Kevin D, 03rd Jul 2009, #12

pete c
                              

Welfare Rights Officer, Adult Social Care, Cornwall County Council, Truro
Member since
30th Oct 2008

RE: Recovery of Housing Benefit overpayment - Court enforcement
Thu 02-Jul-09 12:01 PM

Didn't the client have notification of the Court action, I don't know a great deal about Court procedures but in all the Court actions I have come across there has been notice given to the client to enable them to put a case before the court.

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: Recovery of Housing Benefit overpayment - Court enforcement
Thu 02-Jul-09 12:15 PM

Hi Derek

This is done under civil procedure rule 70.5, which allows the LA to apply to the court only where an enactment provides that a decision of a tribunal or court, except the high court or county court, can be enforced by an officer of the court as if it were a court order. The relevant enactment is section 71(10) of The Social Security Administration Act 1992.

It cannot be used when there has not been a tribunal because in that case a claimant has a right to defend the action in open court whereas under the above procedure the claimant has already exercised that right in a statutory tribunal and the court is simply giving the LA ‘permission’ to ‘go after’ the claimant with the authority of the court behind it.

Regards
Paul

  

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Derek
                              

CAB Adviser, Esher CAB
Member since
09th Mar 2004

RE: Recovery of Housing Benefit overpayment - Court enforcement
Thu 02-Jul-09 08:04 PM

Paul

Many thanks. I understand it now. It doesn't have to be a tribunal or court, it can also be - rule 70(5) - "body or person other than the High Court or a county court". So the LA is the "body" & can go for enforcement without the claimant having any opportunity to dispute it in Court.

Doesn't seem very fair to me, but that's the law so who am I to complain?

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: Recovery of Housing Benefit overpayment - Court enforcement
Fri 03-Jul-09 09:08 AM

I'm not sure about that. Part 70 of the CPR is headed "General rules about enforcement of judgements and orders". I don't think that a decision of a local authority can be classed as a judgement or order. So a "body or person", in my view, means people like independent arbitrators who have statutory powers.

  

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jmembery
                              

Benefits Manager AVDC, Aylesbury Vale DC - Aylusbury bucks
Member since
01st Mar 2004

RE: Recovery of Housing Benefit overpayment - Court enforcement
Fri 03-Jul-09 12:07 PM

Not my strong area so I can't give chapter and verse, but the DWP advice is that it does relate to all overpayments of HB whether they have been to tribunal or not.

  

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jmembery
                              

Benefits Manager AVDC, Aylesbury Vale DC - Aylusbury bucks
Member since
01st Mar 2004

RE: Recovery of Housing Benefit overpayment - Court enforcement
Fri 03-Jul-09 12:16 PM

Apparently it is covered by 75(7) of the SSAA 1992.

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: Recovery of Housing Benefit overpayment - Court enforcement
Fri 03-Jul-09 12:34 PM

Section 75(7)(a) states "if the person from whom it is recoverable resides in England and Wales and the county court so orders, it is recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court".

I'm not sure that that has taken us any further forward.

  

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jmembery
                              

Benefits Manager AVDC, Aylesbury Vale DC - Aylusbury bucks
Member since
01st Mar 2004

RE: Recovery of Housing Benefit overpayment - Court enforcement
Fri 03-Jul-09 01:05 PM

Again, not really my area so I am not really in a position to comment.
DWP advice is copied below.


7.50 Section 75(7) of the SSAA 1992 states that
“...where an amount recoverable under this section is to be recovered otherwise than by deduction from prescribed benefit ... if the person from whom it is recoverable resides in England and Wales and the county court so orders, it is recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court.”

7.51 An HB overpayment decision can be registered as a judgement of the court, (this allows the LA to use any of the enforcement procedures for recovery should the debtor not pay) but this can
only be done
• once the date for review has passed (good practice would suggest one calendar month in
line with appeal rights), or
• after the review, or indeed any further review, has upheld the overpayment decision

7.52 Form N322A (County Court form) should be used, see Annex C* later in this section, or visit the court website for a downloadable copy – www.hmcourts-service.gov.uk

*Note: Annex C does not have a header/footer on the page, so you can photocopy the form for
use.

7.53 There is no prescription as to which officer should sign the N322A form. The LA should decide the appropriate person, as this person does not have to be a legal officer. A Benefits Overpayment Officer may be appropriate.

7.54 You should send the completed document to the court together with
• a certificate confirming the amount remaining is due, this could be an invoice or letter, and
• the overpayment decision notice*, a duplicate is acceptable, and
• the appropriate fee

*Note: The decision notice is a copy of the letter to the person who the overpayment could
legally be recovered from, telling them that there has been a recoverable overpayment. This
decision notice must fully comply with the legislation as stated in Part I and Part VII –
requirements of Schedule 9 of the HB Regs 2006/((SPC) Sch 8) and Schedule 8 of the CTB regs
2006 ((SPC) Sch 7). See Decision notices earlier in this guide, and Annexes A and B at the end of
this section.

7.55 It is important to remember that the application is usually filed in the court for the district in
which the person from whom the debt is recoverable resides, ie the court covering the debtor.

7.56 It is also good practice to inform the court in the application whether the respondent has
exercised their right of appeal, although there is no provision for this on form N322A.

7.57 The LA’s local court should be contacted when advice is required for completion of their forms, and if there are queries on any part of the court’s procedure.

7.70 An officer of the court will make a decision whether to grant an order and they will inform theLA of the decision. Should an order be granted, a copy will be sent to both the LA and the
debtor. This order can then be enforced (see Enforcement later in this section) as if it were a County Court judgement.

7.71 If, however, the County Court does not grant such an order the LA will have to revisit the debt again and decide upon their next action. The LA should consider if the debt should be written off.

7.80 Any appeal against the decision must be made according to the review procedures and not to the County Court. The court will not accept a dispute regarding the fact that there is a recoverable overpayment or from whom it should be recovered. This is a matter that can onlybe taken up by applying for a revision or by appealing. The LA should have allowed one month for appeal rights and so disputes should have been raised before pursuing a debt in court.

7.81 If an overpayment decision notice is defective or the appeal rights have been ignored by the LA, then an application can be made to the court for them to set aside the order.

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: Recovery of Housing Benefit overpayment - Court enforcement
Fri 03-Jul-09 01:43 PM

I’ve looked at form N322A and the notes and it is clearly designed for decisions of courts, tribunals and independent arbiters (such as ACAS). It worries me that the DWP seem to be so clear in its guidance as to its powers to the extent that I fear that I’ve completely overlooked something quite obvious. Can anyone confirm my view or authoritatively put me out of my misery. The power of a public authority to enforce an unproven debt in the courts without a hearing deeply troubles me.

http://www.hmcourts-service.gov.uk/courtfinder/forms/N322ANotes_web_0609.pdf

http://www.hmcourts-service.gov.uk/courtfinder/forms/n322A_web_e.pdf

  

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stainsby
                              

Welfare Benefits Officer, Gallions Housing Association, Thamesmead SE London
Member since
22nd Jan 2004

RE: Recovery of Housing Benefit overpayment - Court enforcement
Fri 03-Jul-09 02:02 PM

"7.81 If an overpayment decision notice is defective or the appeal rights have been ignored by the LA, then an application can be made to the court for them to set aside the order."

I have advised clients in the past who have had full CCJ's re HB overpayments issued against them (including interest)

I have had the order set aside on 2 counts
1) Applying for interest was an abuse of process ( R v Kensington and Chelsea ex p Brandt (1995 ) cited)

2) Defects in the overpayment notifications mean that time limits for appealing have not expired and there may also be no overpayment to be recovered so the Court has no jurisdiction, (Warwick DC ex p Freeman, along with R(H)6/06 read in conjuction with CH/3744/2006)


  

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Derek
                              

CAB Adviser, Esher CAB
Member since
09th Mar 2004

RE: Recovery of Housing Benefit overpayment - Court enforcement
Fri 03-Jul-09 04:00 PM

Paul

It troubles me too,but:

1. SSAA1992 S71 says "10) Any amount recoverable under the provisions mentioned in subsection (8) above—
(a) if the person from whom it is recoverable resides in England and Wales and the county court so orders, shall be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court"

2. Rule 70(5) says " This rule applies, subject to paragraph (2), where an enactment provides that –
(a) a decision of a court, tribunal, body or person other than the High Court or a county court; or
(b) a compromise,
may be enforced as if it were a court order or that any sum of money payable under that decision or compromise may be recoverable as if payable under a court order"

3. In both, the words "as if it were" are used which I think makes it clear that the procedure can be used without a CCJ.

4. If the words "body or person other than..." in Rule 70(5) mean anything, they must mean this procedure can apply other than to decisions of tribunals or courts.

5. I agree the wording of the N322A does not cover this, but it seems to me the logic is inescapable so (very reluctantly) the DWP advice appears to me to be correct. But I'm not a lawyer so it could be that a different interpretation might be valid.

  

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Kevin D
                              

Freelance HB & CTB Consultant/Trainer, Hertfordshire
Member since
20th Jan 2004

RE: Recovery of Housing Benefit overpayment - Court enforcement
Fri 03-Jul-09 04:19 PM

Fri 03-Jul-09 04:19 PM by Kevin D

In the past, defects in notifications only negated a decision if the defects caused "substantial harm" or "significant prejudice" - LB Haringey v AWARITEFE (1999) EWCA Civ 1491 32 HLR 517.

However, a more recent decision in the House of Lords *may* negate "Awaritefe". In R v SoS Home Sept & anor, ex parte Anufrijeva (2003) UKHL 36, it has plainly and unarguably now been found that failure to issue notifications at all means a decision has no effect or force whatsoever - see para 26.

link: www.bailii.org/uk/cases/UKHL/2003/36.html

On the face of it, this isn't quite the same as Awaritefe which looks at notifications that have actually been issued, but happen to be defective. But, I am now wondering whether Anufrijeva can REASONABLY be interpreted as offering support in arguing that even defects in notifications are sufficient to render decisions of no effect, irrespective of prejudice or harm.

Anyone with any view on whether Anufrijeva extends to "defects"?



  

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Top Housing Benefit & Council Tax Benefit topic #8157First topic | Last topic