Hi there
After almost a year of trying to get the LA to explain the period and reason of an overpayment for my blind 72 year old disabled client, I finally got a response. Here's an editted version:

The original overpayment was for £425 for the period 12/2/96 - 31/3/96, made to my client's ex-landlord .....
On 30/6/97 a payment of £838.71 from a completely different landlord was credited against the £425 o/p above ....
This generated a cheque for £413.17 (to my client) on 2/7/99 ....
The error by the LA was not realised until July 2000, when an invoice for an overpayment was issued to my client for £413.17 ....

The LA says that "the OP is correct and recoverable (from my client) as he received funds to which he was not entitled."

I don't beleive that this overpayment should ever have been recovered from my client because:
a) I do not consider that the payment was a proper payment of HB in the first place, and so cannot be recovered under HB regs
b) Even if I'm wrong about the above, it is surely a LA error which my client could not reasonably be expected to know was an overpayment and therefore was not recoverable

My problem is that as the "OP" is so old it is out of time for an appeal. I did ask that the overpayment be written off under the circumstances of the case. The LA response was "... unfortunately, in this case, I will not be using this discretion".

Is there any other course of action anyone can recommend?

Thanks
... Andi

how about a complaint to the Local Authority Ombudsman?

I think you are right about it not being an overpayment of HB at all. If it's taken a year to get the information, this suggests that the overpayment notification, which should have included the cause of the overpayment, was defective. How could your client have provided grounds for an appeal earlier, in the absence of an explanation? It might be worth trying for an appeal, if only to focus the LA's mind (huh?) on its errors - it might want to change it afterall.

jj

further thought... just noticed that client was sent an invoice for an overpayment, and i'm not sure what you mean. assuming that o/p was an excess payment caused in error, I would expect an invoice, not an overpaypayment decision would have been correct-ish, with a covering letter explaining their mistake and requesting a voluntary repayment. Recovery is possible, but only under common law, and can only be enforced by court order. If it was treated as an HB overpayment (and o/p decision given) that would have been an error in law at the outset. If recovery has been made using powers under HB regs, that would have been an error in law, at whatever stage. sorry, i'm slightly confused about whether any recovery has already been made...Friday... : )

jj

If this has been classed by the Council concerned as an overpayment of Housing Benefit you can still ask for the decision to be revised. The overpayment was clearly caused by official error and under the Decision Making and Appeal Regs 4(2)(a) an official error can be revised at any time.

Get your client to submit an Appeal and explain in the appeal letter why it has taken some time to lodge an appeal. Your client’s age and state of health combined with the time taken by the Authority to produce a statement of reasons should be more than adequate to explain the time in this case.

The Council concerned may try to say that the appeal is out of time in which case you can remind them that they have no power to make that decision and they must forward your clients appeal to the Appeals Service who will decide if they will hear it. I strongly suspect that when the Council concerned realises that they cannot avoid this going to Appeal they might well change their mind about writing this “overpayment” off.

I severely hope I am wrong with this, but should the LA choose not to pursue the o/payment by HB regs, they would have up to 6 years to obtain and enforce a judgement against your client through common law (from the date of the invoice).

In case they do decide to pursue it this way it may be worth seeking advice as to whether there would be any successful defence through common law, alternately have you tried speaking to the client's councillor or considered going to the local press?

Thank you all for your contributions.

I'm visiting my client next week to propose making an official complaint to the council, which may (or may not) be referred on to the Ombudsman.

On the point that the Council may still have the right to recover under common law. If they insist on recovery, I would rather they attempted it through the court rather than under the HB regs, which I don't beleive they have the right to do. I don't know much about this area, but would like to think that they wouldn't take a non-English speaking, 72 year old disabled man who is registered blind to court (am I being naive?).

I still don't think my client has a right of appeal unless:
a. I can establish that the notification was invalid, or
b. I can get the council to accept it wasn't an HB opt under HB regs.

Anyway, it's Friday ... it's 5 to 5 ...

Thanks again
... Andi