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Forum Home  →  Discussion  →  Housing costs  →  Thread

HB overpayment due to winning ESA appeal and backdated money

LF
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New Gorbals Housing Association

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tenant won ESA appeal and got ESA backdated and now HBOP as they are treating backdate as if he had the money for every week it was backdated, is this a recoverable overpayment as the claimant could not have know it was an overpayment or done anything to avoid it?

thanks

benefitsadviser
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In my experience it is recoverable. If a percentage of your CBESA has to go toward housing costs and you drop down to assessment rate for a period and therefore receive more housing benefit as a result then its normal in my experience for HB to want the difference back if you win an appeal.

I advised a client of mine to hold back some of their arrears if they won a tribunal.

She got £1200 arrears and spent the lot in a week. Dont ask me how.

She then got an overpayment letter and i couldnt see any reason to challenge.

1964
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I agree.

HB Schedule 6 para 9 allows for arrears of some benefits to be treated as capital and ignored for 52 weeks but CB ESA (unlike IR ESA) is not included. It is treated as though it had been in payment (as income) during the relevant period. I’ve been caught out by it too.

Neil
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that is not Quite correct, I cannot remember its number,but there is a UT/commissioner decision about this when claimant won an ICB appeal. The arguement goes , was the O/p an error, yes the DWP decision was reversed so clearly the original decision was wrong and therefore it was official error.

Could the claimant know there was an O/P , no not until they won the appeal. So any overpayment from when the tribunal issues its decision is recoverable but not prior to the hearing.

The key is the 3rd ground, did the claimant contribute to the O/P, ie did new evidence arise to change the decision, which the claimant give the DWp wrong information or fail to supply information and they could have supplied it at the time of decision. but as the Judge states in the UT/Commissioner decision the Council have no access to the appeal schedule and are unlikely to ever see the detail of the appeal ,it cannot be established that the claimant contributed to the o/p and the onus is firmly on the council to prove this.

so yes there is an O/p but it is not recoverable. Can any one out there rememder the decicision, even without it the arguement is pretty solid. 

Neil
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I wish I could remember the decision, but I used to advise the client to set money aside until the UT/commissioners decision came out.

Paul_Treloar_CPAG
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Tony Bowman - 28 August 2014 01:15 PM

I’m uncertain.

I did look yesterday because I have it mind that there’s a specific regulation allowing arrears of income to be included as income for the period for which it was paid, but I couldn’t find it (in income regs or OP regs). This is what benefitsadviser and 1964 allude to, but 1964’s reference only covers the capital disregard. Maybe it was in the old HB regs…

I found the relevant section in the CPAG handbook confusing on this question.

p.355 et seq WBH 2014/15 details treatment of arrears of benefit in general.

For housing benefit, the relevant legislation is reg 79(7) HB Regs which states that where a change in circumstance is that arrears of income for a past period have been paid, they are taken into account with effect from first day on which the income would have been paid had it been paid timeously, and para.9 sch.6 HB Regs which provides the exemption for relevant benefits e.g. ir-esa, ib-jsa, wtc/ctc, etc.

Daphne
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Neil
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I think this is were we are not agreeing, my arguement is that the timeous aspect is a delay to claim being processed and awarded, and that retrospectively there is actually no change in circumstances which caused the O/P. The reasoning is as follows, you were entitled to ESA then the DM decided that you are no longer entitled to ESA. Subsequently 6-12months down the line you win your appeal and everything is restored to what it was prior to the DM decision i.e. there is no change in circumstances and no delay in deciding the claim. In affect the DM decision to stop ESA now becomes an official error, so then we address the O/P using the standard criteria. 1. Official error. 2. Did the claimant contribute to the error. 3. Could they know they were being O/P . I will keep looking for the decision.

benefitsadviser
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If Extra HB is being paid due to a drop in income as you drop to assessment rate then there is a change of circumstances.

less ESA equals more HB

If ESA decision overturned then things go back to the way they were ESA wise and any extra HB paid is normally recoverable in my experience.

If no extra HB claimed during the appeal period then no Overpayment will occur, but i always advise they claim extra just in case the appeal is disallowed

flair
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I also thought these were recoverable.
Found this case law which appears to state it is not Official Error - CH/38/2008
Sorry not sure how to post links.

[ Edited: 29 Aug 2014 at 02:04 pm by flair ]
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HB Anorak
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The two decisions are in direct conflict with each other, clearly another UT decision is required in which the rival arguments are compared and one or other of them preferred. Don’t recall seeing one. But in this particular case, assuming the HB claimant is also the ESA claimant (ie not partners where one claims HB and the other ESA) the ESA arrears ought to be offset by an exactly matching component in the HB applicable amount. Do you know why that didn’t happen? (Possible reasons include various situations in which claimant has a partner on ESA, DLA or IB; or claimant is a man in his early to mid 60s)

Actually, come to think of it, MR will cause this to happen won’t it? No assessment rate pending MR outcome, so when the appellant subsequently wins at Tribunal there will be a structural HB o/p for the period up to the date the appeal was lodged

[ Edited: 29 Aug 2014 at 12:45 pm by HB Anorak ]
Neil
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Hi all I think I have the full answer thanks to Tony’s reference to CH 943 2003, the decision I was thinking off was Commissioner Howells CH 5485 2002 as ref in CH 943 2003. I affect CH 943 2003 fully supports my arguement, in that if the Tribunal changes the DM original decision, the original decisin is a ’ Mistake/ error’  . Taking into account that this was a oral hearing with the DWP , the Council and HMR+C submission , I would argue it carries far more weight than the later 2008 decision, by a deputy UT Judge.
any other opinions welcome.

LF
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claimant was on contribution based ESA so had rent to pay prior to appeal, then had full HB pending appeal then won ESA appeal and cb-ESA backdated and HBOP as a result of income now treated for whole period. He is a single claimant