Try this for size:

Clt tells me LA is recovering an OP which was originally paid on her late husband’s claim from her HB.

He was retired and claimed HB when he fell ill (in about 1996 she thinks) but apparently did not declare her earnings. Clt states she never saw the claim form and didn’t sign it – nor any renewal forms.

When error was discovered (about 2002 she thinks) LA started recovering OP from his HB and when he died they transferred recovery to her – I presume on the basis that it was her misrepresentation or failure to disclose that was one of the causes of the OP.

I’m presuming this was before the NINO requirement and the need for the partner to countersign the claim.

Anyone know when these requirements were introduced?

I have asked the LA for a copy of the decision and a statement of reasons for recovering the OP.

My masterplan is to argue that she did not misrepresent nor fail to disclose as she had nothing to do with the claim. Therefore the OP cannot be recovered from her.

Does this hold water?

Ta.

Because of the changes in O/P rules (4 since 2001), the date of the LA's original O/P decision is potentially critical. Is that known?

As an aside, there was, and never has been, a legal basis or requirement for a partner to countersign a claim form. For HB/CTB, there is no such thing as a "joint" clmt/ptnr claim. Only one can be the clmt. This means a partner is not under a duty to disclose. HOWEVER, there is still the possibility of misrepresentation (but even this depends on which version of the regs apply).

Thanks for that.

I think what I was trying to establish was the date that it became the practice - certainly in our neck of the woods - for LA's to ask for the partner's signature on the application.

As far as I can tell, the less she had to do with the claim form the better for her prospects of successfully arguing that the OP should not be recovered from her - if she had countersigned his claim in which he states she wasn't working then she might be find it hard to argue she hasn't misrepresented?

I don't yet know the date of the decision.

As a decision has been made to recover from your client (who by the way is not the partner of the claimant from the date of his death,) its more than arguable that she must be notified of the overpayment.

Its my guess that she was not notified.

R(H)6/06 applies as much to any person from wom an overpayment is recoverable as it does to a landlord who happens to be the payee. Without a single recoverability decision that complies with R(H)6/06, there is no overpayment that is recoverable from anyone.

The LA will then be requyired to issue a valid decision, and the Regulations that apply will be those in force at the time it is issued. That means the 2009 Regulations will apply

Good thinking batman.

I have been told on the QT that the LA is going to stop recovery and refund the sum recovered thus far which if correct suggests they realise they don't have a leg to stand on.

But we shall see....

I have a case which is essentialy the same as this one.

am I right in thinking this rests on the la being able to prove that my client "caused" the overpayment by failing to disclose a material fact i.e. that he was working?

the decision for this one was issued on 25/06/08.

Per Stainsby - I think you might argue that a widow(er) is no longer a partner and therefore benefit overpaid to the late claimant cannot be recovered from the surviving partner (as was)?

I didn't have to argue any of this as the LA refunded without a peep in the end....

is there not still room for them to say the ex partner caused the overpayment though?

i have tried to find commissioners decisons re this but most of them just seem to be on recovery from the land lord.

This is a vastly oversimplified post, but...

For HB/CTB, a partner is not under a duty to disclose - the duty is always the claimant's. HOWEVER, if a partner misrepresents a material fact, the partner becomes a legitimate target. Note the distinction between "misrepresentation" and "failing to disclose".

s.75(3) of the SSAA 1992 should be read in conjunction with the version of HBR 101 that was in force at the time the LA's decision (there have been 4 versions since 2001!).

Try CIS/1996/2006 which established that a partner is under no duty to disclose a change of circumstances

thanks for all the replies.

I pushed the local authority for a copy of the original decision and again insisted they prepare their submission for appeal and just like in dons case they have now decided the amount is non recoverable without the need to appeal or for me to put up any great argument other than to ask for the appeal.

Following on from the original post. I was under the impression (and I could be wrong) that you cannot recover a HB overpayment from the partners ongoing entitlement to benefit, even if the partner is a target for recovery.

I thought that the only thing that had changed was that a partner could be a target as well as the claimant, but that you could only recover from them by invoicing them.

Could someone clarify this for me please?

my client was sent an invoice but he is in full time work.

The 2009 amendments now mean that overpaid HB is not recoverable as such from a claimants partner (amended Reg 101), but is can be recovered via a partners onging benefit. (amended Reg 102)

The couple must be partners both at the time the overpayments were paid and at the time of any recovery I have reproduced the relevant amendments below: (ref SI 2008 no 2834)

(2) In regulation 101 (person from whom recovery may be sought)—
(a) for paragraph (2)(b) substitute—
“(2) For the purposes of section 75(3)(b) of the Administration Act (recovery from such other person, as well as or instead of the person to whom the overpayment was made),
where recovery of an overpayment is sought by a relevant authority—
(a) subject to paragraph (1) and where sub-paragraph (b) or (c) does not apply, the overpayment is recoverable from the claimant as well as the person to whom the payment was made, if different;
(b) in a case where an overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact (in either case, whether fraudulently or otherwise) by or on behalf of the claimant, or by or on behalf of any person to whom the payment was made, the overpayment is only recoverable from any person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made; or
(c) in a case where an overpayment arose in consequence of an official error where the claimant, or a person acting on the claimant’s behalf, or any person to whom the payment was paid, or any person acting on their behalf, could reasonably have been expected, at the time of receipt of the payment or of any notice relating to that payment, to realise that it was an overpayment, the overpayment is only recoverable from any such person instead of, if different, the person to whom the
payment was made.”;
(b) in paragraph (3A)(c) ofor “paragraph (2)(a)(ii)” substitute “paragraph (2)(c)”; and
(c) omit paragraph (4)(d).

(3) In regulation 102(e) (method of recovery)—
(a) in paragraph (1) for “regulation 105” substitute “regulation 105(1)”;
(b) after paragraph (1) insert—
“(1ZA) Where an overpayment is recoverable from a claimant who has one or more partners, a relevant authority may recover the overpayment by deduction from any housing benefit payable to the claimant’s partner, or where it is unable to do so, may request the Secretary of State to recover any recoverable overpayment from the benefits prescribed in
regulation 105(1B) (recovery of overpayments from prescribed benefits), provided that the claimant and that partner were a couple both at the time of the overpayment and when the deduction is made.”;

The LA will no longer be able to invoice a claimants partner simply because overpayments are not recoverable from a partner, still less from a former partner

An invoice on its own is not a valid overpayment notice and therefore gives no power to recover an overpayment . Please see CH/1457/2005 and CH/1395/2006.