Hi,all – puzzled in the valleys here again.

Have been presented with a client who had an accident in 1995 and consequently suffered both long and short-term memory loss. For years, his wife looked after the benefit claims (she was not his appointee) and they lived “happily” in a rented property (income related and contributory benefits). Then, there was a compensation pay-out following the court hearing re the accident where it was made clear and accepted by the court that he couldn’t function without his wife doing everything (money, housekeeping, accompanying outside and the court accepted that he couldn’t remember and wasn’t really aware of what was going on (benefit claims and all that were very much a blur to him so his wife completed them and he signed them). We have copies of letters to the various authorities from his wife indicating that she had to do everything that involved finances etc. (Anyone spotted where this going, yet ?)
So, one day, it appears that for most of this time, his wife has also been working. This resulted in quite large overpayments to the DWP - half of the money deemed an overpayment by the DWP was paid back and an ongoing deduction of benefits was arranged (which continues). This was all sorted out / negotiated, by his wife.
Then, when there was a question about eligibility to Housing Benefit and CT Benefit, his wife left.
No forwarding address.
He was interviewed at home, but didn’t make a lot of sense. Then his GP sent him to us. Then he was interviewed again and the LA arranged for him to be accompanied by a Mental Health Advocate – not a lot of sense came from that interview either. He started receiving tenancy support.
Then an overpayment notice appeared (about £40k). We wrote to the LA together with copies of the transcript from the court hearing for his compensation, highlighting the parts about his memory and functionability. They were sympathetic to his situation, but because they can’t find his wife, have decided to recover from him. Our letter stated that his condition meant that he could not be a credible witness (he was let off jury service this Spring as he got confused during the explanations at court and they realised that he couldn’t possibly follow even a short thread of a story), and that appearing at a Tribunal would in effect, be even more of a waste of public money.
Is there anything out there which relates to this situation ? His GP is very concerned at how this has affected him (not forgetting that he now has no-one at home to look after the day to day affairs).
p.s. No Fraud charges laid by DWP for their recovery and no mention of fraud by LA in correspondence.
( It’s funny that they can use data-matching when looking for anomalies, but appear to be unable to do so in a case like this.)

This won't be what you want to hear, but here goes.

Firstly, just a slight note of caution. My o/p knowledge isn't quite as sharp as it once was. However, I have taken the time to look at the legislation first hand along with a scan read of the analysis in CPAG (re: HBR 101(2)).

Secondly, this posting relies entirely on the legislation as it stands from 10 April 2006. This *may* matter to the extent of whether or not the o/p is recoverable from the partner for the period before that date (legislation changed). There are conflicting views:

1) the legislation as at the date of the decision should be applied; or
2) the legislation as at the respective period(s) of the overpayment should be applied.

However, it is of no help to your client - he is still a legitimate target under any flavour of the HB/CTB legislation. For that reason, I haven't referred to the "old" legislation and I offer no view on whether "1" or "2" is correct.

Right, to your client's case.

There doesn't seem to be any doubt that the clmt received HB/CTB to which he was not entitled. Therefore, there appears to be a legitimate overpayment of benefit.

The next question is whether or not there is official error. Based on the info given, I can't see any basis on which it can be argued that the overpayment was caused by an official error.

Given the amount of case law in existence, I can't see any chance of success in arguing that the LA's failure to pro-actively engage in data-matching amounts to an error.

If the o/p was not caused by a LA/DWP/HMRC error, the overpayment is recoverable, irrespective of any other consideration.

So who is it recoverable from? Well, definitely the clmt. But, its possible that the o/p is also recoverable from the ptnr if she misrepresented or failed to disclose a material fact, through which the o/p resulted. But, failure to disclose is subject to their being a duty. In the absence of the partner having Power of Attorney, or being an appointee, it was the clmt's responsibility to "disclose" his circumstances to the Council. If that is correct, only misrepresentation can assist in terms of the partner.

BUT, in any case, the o/p remains recoverable from the clmt. Even if the o/p is recoverable from both the clmt AND the ptnr, the LA is still entitled to seek actual recovery from only the clmt. And, so long as the LA has administered the claim correctly, a Tribunal can only consider whether an overpayment is recoverable from a particular party. A Tribunal has no jurisdiction over actual recovery.

For all aspects upto (but excluding) the decision to seek actual recovery, it's worth noting that health and fraud issues haven't played any part.

As for actual recovery, you can ask the LA to exercise discretion and cite health in submissions on that issue. It may also be worth asking the LA to consider employing a tracing agency to try and effect recovery from the partner (assuming she is caught by "misrepresentation"). But, the LA is not obliged to take such steps and, further, there is nothing to stop the LA from trying to effect recovery from BOTH parties until the debt is settled.

Regards

Should have quoted the HB legislation (as at 10 April 2006):

HBR 101(2)(a)
s.75(3) Social Security Administration Act 1992


For CTB, it's much more straightforward - your client will be the sole target for recovery. The partner will only become a target for excess benefit if she returns to the household.

and some more points

1. hopefully his compensation was put in a PI trust?

2. if he's in that much of a state, why is the court of protection not involved? where is his appointee? (one would think he clearly doesn't have capacity in any shape or form).

3. therefore, if he doesn't have capacity, can he really be a target for recovery? i don't know the answer, but on what you have said he hasn't had capacity to apply for the benefits, let alone anything else .. recent caselaw surely should be distinguishable...

In response to Claire's points (hope you don't mind!):

1) according to the original post, the cause of the o/p was undisclosed earnings by the clmt's then father. It *appears* that capital was not at issue.

2) according to the original post, the partner was not his appointee. The way it was expressed indicates there is no one else who was an appointee. Unless a person falls within HBR 82(2), (3) or (5), they are not an appointee for HB/CTB purposes. Unless HBR 82 bites, everything is regarded as being the clmt's duty / responsibility etc.

3) In the context of there being a duty to disclose, capacity has no relevance when determining the person(s) from whom an overpayment is recoverable (B v SoS for DWP (2005) EWCA Civ 929).

If there had been an official error, capacity would be relevant in considering whether or not the clmt could reasonably have been expected to realise he was being overpaid. However, based on the info so far, there does not appear to have been an official error.


In the circumstances, I strongly sympathise with the clmt. But, unless some more info comes to light, the only glimmer of light at the moment is to try and persuade the LA to go after the partner without going after the clmt. Even if the LA did that, there is nothing to stop them keeping their options open and come back at a later time to the clmt.

Regards

Grateful thanks to those who have taken the time to post – all points thoughtfully received.

R(IS) 9/06 (B v Secretary of State for Work and Pensions <2005> EWCA Civ 929) deals with “an individual” and there is no reference to anyone filling in the forms for her in the way our client relied on his partner to do all the paperwork. Our client knew his wife was working but because he was given prepared forms to sign by his wife, signed them. Is our client a “typical” claimant ?

CH/2935/2005 Para 35 - If in fact a claimant does check the figures and turns a blind eye to an error that he ought to realise was in his favour, then such a claimant would not be able to take advantage of regulation 99(2). That claimant could reasonably be expected to realise that there was an overpayment. However, a typical claimant cannot reasonably be expected to read or understand the calculations, and if such a claimant does not read them, or tries unsuccessfully to understand them, then the council cannot assert that that claimant could reasonably have been expected, when each payment was made, to have realised that it contained an element of overpayment. (our italics)

I’m aware that 2935 pre-dates 9/06 and that 9/06 does not deal with a “typical” claimant. Our challenge at this stage, is that if it is decided that there was an overpayment (and we can’t really see that there wasn’t), it isn’t recoverable, because our client is far from a “typical” claimant, and that is not something that an appeal tribunal can look at. As a witness, our client would only be able to confirm that he was not able to deal with the claims (using the evidence in his compensation case), not what the claims contained.

For clarity, capital plays no part in the case. The appointee side of things is being looked after by the Mental Health Advocate, but that’s for now. Back when the claims were made, his wife “acted” as his appointee, which is why such a move is needed now.

A trawl through the Regs etc pre April 2006 is now on the cards.

Thanks again to all.

Rob wrote:
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I’m aware that 2935 pre-dates 9/06 and that 9/06 does not deal with a “typical” claimant. Our challenge at this stage, is that if it is decided that there was an overpayment (and we can’t really see that there wasn’t), it isn’t recoverable, because our client is far from a “typical” claimant, and that is not something that an appeal tribunal can look at. As a witness, our client would only be able to confirm that he was not able to deal with the claims (using the evidence in his compensation case), not what the claims contained.

For clarity, capital plays no part in the case. The appointee side of things is being looked after by the Mental Health Advocate, but that’s for now. Back when the claims were made, his wife “acted” as his appointee, which is why such a move is needed now.
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The difficulty is that 2935 is a case in which the o/p was caused by a LA error. Unless the o/p was caused by an official error in your client's case, 2935 will not have any relevance. As an aside (unrelated to the case in this thread), there is a real danger or taking Cmmr Mark's case out of context. There are several CDs that can be cited to distinguish 2935.

As I explained above, if there is no official error, the o/p shall be recoverable, irrespective of ANY other consideration at all. It won't matter whether or not your client is a "typical" clmt. No official error ALWAYS = recoverable per HBR 100(1). The LA won't need to engage in any other arguments put forward by, or on behalf of, your client. A paragraph that I myself use in LA submissions is typically:

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"The LA acknowledges the many arguments put forward by the clmt's representative, especially those relating to health. However, HBR 100(1) is clear. If the o/p has not been caused by official error, it is always recoverable, irrespective of any other considerations."
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Note that even if you have produced a 10 page report plus supporting expert medical advice, it has no effect at all.

CDs on this point include: CH/2903/2004 (p10+); CH/4876/2002 (p12+); CSHC/0073//2004 (p8-9).

And, "acting" as an appointee is also irrelevant. Unless the person was appointed in accordance with the specific provisions of HBR 82, that person is NOT an appointee for HB purposes (& the CTB equivalent).

It crosses my mind that the above may be coming across as being one-sided and too supportive of the LA. That isn't the intention. It's just that, based on the info given so far, the law is unusually clear.

Entirely objectively, if I was presented with the case on the basis so far described, and was given an ultimatum that my job depended on "winning" the case at appeal, but I could choose who to represent, I would unhesitatingly represent the LA 99 times out of 100. And the other one? Well, gotta allow for the odd maverick Chair.... But, even in the one, I would fully expect a Cmmr to overturn the maverick decision.

Unless you can demonstrate that the o/p was caused by an official error AND that your client can fall within HBR 100(2), I sincerely see no prospect of success on the issue of whether the o/p is recoverable from your client. The only chance is on the separate discretionary (non-appealable) issue of actual recovery.

Regards

can B be distinguished.

"quote:
The decision from which this appeal is brought (CIS/4348/2003) is so closely and fully reasoned that any attempt at paraphrase risks doing it an injustice. It records, however, certain important propositions which were uncontentious:


(a) that one could not disclose, nor therefore fail to disclose, what one did not know;


(b) that failure to disclose something required not merely the negative fact of non-disclosure but an affirmative obligation to disclose;


(c) that the materiality of a fact was an objective question independent of the claimant's perception; and


(d) that "fraudulently or otherwise" meant that innocent failures of disclosure could result in recovery"

my thought is, does your client has so little capacity & understanding that it can be said he did not know his wife was working? on what you've said about his condition, one does wonder....

I think the problem here is that the Housing Benefit and Council Tax Benefit overpayment regulations are so different from those of other social security benefits that you cannot use coms decisions for other benefits as precedents.

In HB/CTB cases, it is quite possible for a claimant to be a “model” claimant, declaring all their income completely and comprehensively, reporting all changes of circumstances in advance and complying fully and promptly with all the Council’s instructions and still be required to repay an overpayment.

The Commissioner’s have commented a number of times how onerous and restrictive the HB/CTB overpayment provisions are compared to those of other benefits, but they have no choice but to apply them.

The first question that will be asked for any HB/CTB overpayment is “was it caused by official error?” If the answer is “no” then the overpayment is recoverable full stop. Nothing else is relevant, nothing else falls to be considered.

Hi again Claire,

As Jeff has kindly reiterated, and to confirm what I have already said; if there is no official error, then none of the arguments suggested by you will be of any relevance.

Thanks again to all – have ploughed through and have reached this cross-roads -

The authority states that they don’t know where the claimant’s ex-partner is to be found, so they intend recovering from the claimant. However, as the relationship has broken down, they can only recover from the claimant’s ex-partner if they (the ex-partner) caused the overpayment. If that’s the case, then they must have decided that the claimant’s partner caused the overpayment.
(Before anyone jumps up and down about that being irrelevant etc etc …)
Why did the claimant’s partner cause the overpayment ? Because the claimant wasn’t capable of completing the form.
If the claimant wasn’t capable of completing the form did he know what he was signing ?
Did he know his ex-partner hadn’t included her wages on the form ?
If the answer’s “no” and if that’s the reason the overpayment arose, the reasoning behind the decision to recover from the claimant must be as follows –

“We accept that the overpayment was caused by your client’s ex-partner, because your client was not capable of completing a claim form at the time. The reason your client’s ex-partner completed the claim form was because your client was incapable of doing so. We told you that we could not recover from your ex-partner because we did not know where they were. When we told you this, we therefore accepted that the over-payment was caused by your ex-partner otherwise we would not have been able to try and recover the over-payment from them. However, even though we accept that the overpayment was caused by your ex-partner, and that you were incapable of dealing with the claim form, we are going to recover the overpayment from you.”

Penny for ‘em !

Thanks.

The provisions covering the target for recovery are complex.

Using Reg 101the LA can always recover a recoverable overpayment from the claimant.

They *may*, depending upon the circumstances of the case, also be able to recover an overpayment from the person to whom it was paid (e.g a landlord) or a person who misrepresented or failed to disclose.

But to answer you question, yes, it would be possible under the regs for the LA to decide that your clients ex-partner caused the overpayment, but they were going to recover it from your client anyway.