Any ideas much welcomed

Cl has substantial HB and CTB overpayments caused by failure to notify of receipt of CA from 2002 underlying entitlement awarded for carers premium etc all calculated

have appeal hearing coming up based on official error from late 2006 when we notified the LA (Wandsworth Council) on cl's behalf, issue is they did not stop payment until July 2007 and using argument that client must have reasonably have realised as we as her rep's knew - it seems perverse that other than a short period to implement what we had told them that they are seeking recovery

while i understand that by the wording of regulation 100 etc that it is recoverable when cl reasonably knew the point is there seems to be no compulsion on the LA to act as they can simply use the argument put forward in this case? between December 2006 and July 2007 we sent four separate letters asking the LA to adjust benefit

as said any ideas welcome, thanks in advance

I can't think of any arguments to help. CH2888/2002 supports the LA (see page 400 HB/CTB legislation 2006/2007 - commentary to reg 100). In that case, the claimant started work and notified the LA and his partner repeatedly enquired as to when the benefit would be reduced.

The Comissioner did say (quote from the book) "the conclusion requires caution, since it is possible for such a claimant to form the view, reasonably, that the LA does not regard the increased income as relevant to HB entitlement"

Where the client has professional involvement, as in your case, this argument might not stand up, but I would argue that the key phrase here is 'the LA does not regard'. Very difficult though.

I think I would be inclined to complain most strongly to the authority and be prepared to follow up to Ombudsman - its a very heavy-handed and one-sided approach by Wandsworth Council - who, according to thier website - have a charter mark for customer service excellence (but no customer charter for the benefits service...)!

It is very difficult - but not impossible.

The claimant may have known through her reps that she was being overpaid. But it also was reasonable for her to believe that information provided to the authority would be acted upon. I presume the authority has included in its sub copies of your letters, showing the dates they were received?

What about an argument along the lines of no recoverability from a week following (poss a bit generous given the authority's power to suspend) the authority's receipt of your letter to the date claimant received next rent statement or entitlement decision? And the same through all three of the subsequent letters you sent? I don't know how much the o/p might be reduced by this - but the authority would find it pretty hard to argue (and the tribunal pretty hard to decide) that the you and the claimant ought not to expect notification to be acted upon. Only when you/she knew it hadn't been could o/p have been realised.

It is very case difficult to argue.
If you look at CH/3309/06 you will see the extent of the challenge.

4. It is not necessary for me to go further into the actual evidence or attempt to say what I think really happened, because the tribunal chairman decided to accept the claimant’s evidence that she did indeed give timely notification to the Council about having started work so from then on the error was not her fault, and the Council accepts for the purposes of this appeal that these were findings the tribunal was entitled to make.
5. The appeal is however brought on the single, and in my judgment unanswerable, ground that even accepting those findings, they provide no basis for the tribunal’s conclusion that therefore the excess benefit was not legally recoverable from the claimant. That fails to give effect to the further important condition in regulation 84(2) under which, even in those circumstances, excess benefit paid or allowed by mistake remains legally recoverable by the Council unless:
“(2) … the claimant or a person acting on his behalf or any other person to whom the excess benefit is allowed could not, at the time the benefit was allowed or upon the receipt of any notice relating to the allowance of that benefit, reasonably have been expected to realise that it was excess benefit.”
6. There is no answer to the Council’s appeal on that ground. The rules permitting recovery of council tax benefit paid or allowed by mistake are extremely wide, and although their operation may seem harsh in a case such as this if the facts were as found by the tribunal, neither the tribunal nor I have any choice about applying the legislation as it stands. The whole of the claimant’s evidence to the tribunal was that she had been trying to get across to the Council that the circumstances affecting her benefit had changed, and she wanted a proper bill, because she knew she could not now be entitled to the council tax rebate they still persisted in allowing her despite everything she said. Her submissions to me reiterate this, very frankly and honestly making clear that she knew she was not entitled to the benefit, and was making every effort to pay it back. On that basis it was simply impossible for her to get within the exception in regulation 84(2) for people who could not reasonably be expected to realise they were being overpaid.

Yes, thanks jmembery I had seen that decision you have cited it was more or less what i had thought

it maybe more a case of maladministration in taking almost seven months to implement the details in the letter

to make it more frustrating in May 2007 the LA did suspend the claim to allow client to provide CA details and the when un-suspended they made the same mistake - at the same time there was a second overpayment, which they are not seeking to recovery and has left me banging my head against the wall

the CA that client claims is in respect of her daughter, who obviously gets DLA, however from the start of child DLA claim the award is in clients name (as child under 16) and LA applied DLA as clients given the disability premium instead of disabled child premium - they accept that client could not in that instance reasonably have realised - one argument i will run with is that if at the time those decisions where issued, that overlap with this overpayment, how can the client not be expected to realise one mistake but be expected to recognise the other?

thanks for the ideas and time

I presume that any calculation includes an offsetting of the carer premium to which the client would have become entitled when CA was written into the equation.

yes, as per first post....

2002 underlying entitlement awarded for carers premium etc all calculated

but thanks for the input, it can forgotten!

tribunal this PM will let you know how it goes, trying for when cl first notified but did not provide details was official error and cl could not reasonably realise then as fall back same from date we notified could not have realised on basis that cl had made disclosure and so presumed was correct payments but falls down as calculations do not show carers allowance, carers premium etc

The Ombudsman route may well be the best option in your client's case as from what you have posted, it would appear you will have little problem showing maladministration.

The problem you may have is that the Ombudsman will not investigate the overpayment and it's recoverability as such as this is covered by the right of appeal. However, you may be able to get the Ombudsman to investigate the distress that was caused your client by the delay in processing.

I would suggest that you complete an Ombudsman complaints form and, before sending it to the Ombudsman, send a copy to the Benefits section, copied to the local Councillor with a letter saying that your client is looking to go to the Ombudsman with the complaint but you want to give the LA a chace to reach an equitable arrangement by writing off the overpayment given they acknowledge they have made a number of errors on the case. Then you can always send the complaint off if the LA dont agree.

Sorry if you have already thought of this.

It is a shame that the regulations are weighted against the client so much in this case

there is an old case that states that the regulations envisages that the LA will act as soon as possible but does not make any comment on what happens if the LA do not, thanks again

Just to let you know that the appeal was not allowed, the chair did not like the fact that (1) there had been a delay of two years by the client in first declaring the CA income and (2) that after declared he should have noticed that the income was not on the list sent with the assessments of benefits/income received.

It seems to me to be too simplistic, and weighted in the LA’s favour, to state if on assessments and missed then client should have realised and if not on and client did not realise but should have realised.

On the day Wandsworth sent their presenting officer who almost seemed to love the fact that the CAB had been involved from the start of the year saying if you knew then the client must. Any rebuttal of this was referred to the ‘complaints procedure’, worrying the chair seemed to agree without taking on board the point precisely what can you do once the mistake has been noted other then ask the LA to stop it?

Discussed with the chair that reasonably realise is subjective and what the client could reasonably be expected to have realised the chairman seemed to think otherwise. The short decision notice issued on the day of the hearing simply states that the claimant cannot use the argument could not read or understand, which he can’t and should have reasonably realised, it goes without saying that a SOR has been requested.

One of the distinctions that appears to have been made by the Tribunal is that a clmt does not have to ACTUALLY realise. The law only requires that a clmt could reasonably have been EXPECTED to realise. This distinction has been analysed by Cmmrs in:

CH/0858/2006 (para 29)
CH/1307/2006 (para 15)

Cmmr Henty once famously observed that the HB/CTB overpayment provisions are "draconian". Nevertheless, the law has to be applied.

Hmmm! For "a clmt", read "the clmt".

in relation to - clmt could reasonably have been EXPECTED to realise - it has to be subjective to judge what would be reasonable for that clinet to expect otherwise no client could ever win as the argument would be if i know then reasonable to expect the client to have known am i missing something?

Surely, (and not wishing to appear judgenmental in any way), what a claimant can reasonably be expected to realise will also be dependant upon their educational and intellectual abilities....?

Definitely Mike - CH/2554/2002 looked at the issues of background / knowledge / intelligence etc. And, Cmmr Jacobs made the point that the test(s) must be applied to THE clmt; not just A clmt.