Just seen a very confused client who is struggling to come to terms with a decision that she has been overpaid HB to the tune of £460 and that this is recoverable. She has already appealed and already has a hearing date in April but appears confused about her grounds of appeal and confused about the hearing.

Her confusion, however, is nothing to that of the authority whose submission sits in front of me.....

They concede that on 19/10/07 my client notified them of the change in circumstance (an increase in wages from 18/10/07) that led to the overpayment but argue that the period from 19/10/07 to 18/11/07 when the claim was not re-assessed in light of the new information should be found to be one where official error did not occur, following Commissioner Jacobs in CH/0858/06 at para 20.

"20. The local authority was not aware of the increase in the claimant’s earnings until she mentioned it at the visit on 19 April; it took it into account on 13 May. That was less than a month later. Delay can be an official error. However, Ms Jackson argued that the local authority had taken a reasonable time to amend the claimant’s award. I accept that submission. I note that a decision on a claim must be made within 14 days or as soon as reasonably practicable thereafter: regulation 76(3) of the Housing Benefit (General) Regulations 1987. There is no provision for decisions on supersession. Perhaps more leeway is appropriate once an award has been made than on an initial claim. But even applying the standard in regulation 76(3), I consider that the local authority acted sufficiently promptly to avoid an official error."

And, of course, if no official error, the overpayment is recoverable.

They do, however, make a further concession in admitting official error for the period from 19/11/07 to 10/12/07, the date when they did get around to re-assessing the claim. The overpayment for this is also nevertheless recoverable, in their view, because my client could reasonably have realised that she was being overpaid.

Which is all well and good - but for their failure to explain quite how all this hangs together when their own submission repeatedly refers to the fact that payment of benefit was suspended on 19/10/07 when my client notified them of the wage increase. They aren't too keen, either, on dealing with issue of quite why it was that the supposed "re-assessment" of 10/12/07 failed to take account of the increase in wages they'd been informed of - and that this failure only came to light when my client received the new determination/notice of lifting of suspension and promptly got on the blower to them.....

DWP makes mistakes; HMRC makes cockups; but for a real, out-and-out buggerup, you need a local authority benefits department!

'this failure only came to light when my client received the new determination/notice of lifting of suspension and promptly got on the blower to them.....'

As I'm sure you are aware, if your client realised that he/she was being overpaid upon receipt of any notice relating to the payment then the overpayment is recoverable (even if it was caused by official error).

Sure. But realising that the decision notice contains an error in respect of one's earnings and realising that the amount of benefit that said notice states one is entitled to is an overpayment are not the same thing.

Mon 10-Mar-08 12:19 PM by shawn

(Edited to fix html)

Thought I'd join in...

Paraphrased from CH/1307/2006:

This decision makes it clear that a claimant does not have to actually realise s/he was being overpaid; the correct test is whether or not the claimant could reasonably have been expected to realise (para 15).

Further, where there has been a change in income, “…the natural consequence was that (s)he could have been expected to be alert that there would be a change in benefit…” (para 16).

If I was asked to choose who to represent in this case, on the basis of the most likely outcome (based on the info given in this thread), it would be the LA....

Mon 10-Mar-08 12:43 PM by past caring 1

Again, all true - but as made clear in that decision and elsewhere, the test is also what the claimant, not a claimant, could reasonably have been expected to realise. In this instance, I think we'll be able to swing it.

Anyway, I didn't particularly post this for the purposes of discussing the merits of the case (I know the fact she told the authority the moment she realised they'd got her income wrong again means we have our work cut out) but because of the amusement that the reference to CH/0858/2006 caused me.

But feel free to continue......

Actually, I agree - the LA's interpretation of the application of CH/0858 is um, er, "a stretch".

Is the LA seriously suggesting that, for ANY overpayment period, the first month can never be "official error", but the remainder can? Hmmmm. Me thinks that this was NOT what the Cmmr meant (or indeed said).

I would be interested in any comments about how frequently councils are now using the "no official error if info not acted on for less than a month" suggestion coming out of CH0858 06 is used and how tribunals are responding.

Any comments?

Kevin

I can't find CH 1307 2006 on Rightsnet or the other sites,
& it might be helpful in a case I have. Could you please say where I can find it? Many thanks.