Hi all,

I'm considering submitting a late appeal of an overpayment on the grounds that the claimant, who didn't respond to a suspension notice and incurred the overpayment as a result, can now provide evidence of her income for the period in question.

LA don't like this because claimant had the opportunity to supply the info on suspension and didn't do so - in effect depriving themselves of the underlying entitlement. I can see thier point of view here (albeit a simplistic one), but since the calculation of underlying entitlement is part of an overpayment decision, and the evidence now shows that calculation to be inaccurate, I can't see any reason why this shouldn't give rise to a late appeal.

I haven't tried this before, but the idea does open the door for late appeals of signficant numbers of HB overpayments. My only problem, is that is seems worringly simple...!!

Anyone have a view on this? Has anyone done it? What was the authorities stance with the appeal?

Thanks as always

Tony

1) If the authority suspended why was there any overpayment at all? Or did they just threaten to suspend?

2) Was the suspension decision - and the the termination decision that presumably followed - properly made? I'm thinking here of the requirement under reg. 13 of the HB D&A regs. for the authority to inform the claimant of the requirement of the reg. itself, particularly of para. 4(b) - this is the stuff about satisfying the authority that the evidence does not exist or cannot be obtained by the claimant. LAs often don't include this in suspension decisions and it's possible to argue the decisions are defective as a result. Any termination decision predicated on defective suspension decision would also be defective....

3) The above isn't simply hair-splitting. Had your client been informed of the possibility of being able to explain to the authority that the information was not available, she'd have done so....it is now available and they should revise accordingly.

Thanks for the reply. I appreciate the effort to encompass all avenues, but please assume that all other factors are resolved or undisputed. I'm only looking for opinions on the specific issue I first raised.

Thanks,

OK then.

On the two occasions I've done this, the approach has been one of a straightforward mistake of material fact and I've sought a revision prior to appealing. Argued that the amount of any recoverable overpayment is a question of fact and, as such, isn't altered by client's tardiness in supplying information in the one instance or failure/refusal to make a claim for backdating in the other. Both cases went to appeal and we won on both. The former case looks most like yours, but the chair was having none of it - in fact had quite a go at the authority for refusing our reasonable request to revise.

I'm confused... a review on the grounds of a mistake of a material fact only applies where the original award was more advantageous than it should have been (reg 4(2)(b) HBCTB(DMA)regs). Did your chairman get it wrong....?

Possibly. It was a while ago now and whilst I was working somewhere else so I can't check the details...but iirc the mistake as to material fact was emphasised in the revision request rather than the appeal - we'd also made an application for extention under reg 5 which the authority agreed to, though they then refused to change the actual decision. When it went to hearing I think I argued that the extention meant we weren't caught by reg 4(2)(b).

It may have been that the chair had in mind the power to revise under reg 4(1)(b) when criticising the authority allowing the case to come to hearing.

And thinking about it - were I to be running such a case now, I'd just lodge the appeal along with the evidence of actual income. I'm not sure what grounds the authority could rely on for refusing to change the overpayment decision, assuming the evidence of income was incontrovertible and the appeal was brought within time. The "missed opportunity" stance your authority seems to be hinting at isn't supported by the regs, particularly mandatory terms of reg. 104.

it does seem disconcertingly simple, but i can't think what would prevent it. the big difference i think is that while the onus is on the claimant to prove their entitlement, to recover overpaid benefit, the onus is on the authority to prove she was actually overpaid, not to presume she was overpaid...
i don't know if CH/2995/2006 helps - this makes clear the obvious - that a termination following a suspension cannot be effective for a period earlier than the suspension...it's CTB but same principle...

reg 4(1)(c) allows revisions on late appeals...
??

when you say the LA doesn't like this...have they raised any valid objections?

Wed 21-Nov-07 02:22 PM by past caring 1

"It may have been that the chair had in mind the power to revise under reg 4(1)(b) when criticising the authority allowing the case to come to hearing."

This should have read 4(1)(c) - as jj correctly identifies.

My view is this. An appeal against an overpayment decision should be lodged on the ground that all or part of the overpayment is not recoverable. Reg 104(1)(b) should be used to offset an entitlement that would have arisen “on the basis of the claim as it would have appeared had any misrepresentation or non-disclosure had been remedied before the decision”. That is the entitlement decision.

The use of the word “any” suggests that any omissions on the claim form can be corrected and the underlying entitlement can be calculated.

I don’t think it needs to get any more complicated than that.