We have an overpayment appeal ongoing which has generated 2 council tax bills totalling £920. The LA have demanded £10 pw from each of the two bills. The clients are already paying this years bill and so finding themselves in financial hardship. I've written to ask them to reduce the rate of recovery of these two bills but they say they're unable to do so due to the large balances. Relatively speaking £920 is a drop in the ocean compared to some.

I'm going to ask for an internal review so would be grateful for any strategies on persuading LA to accept less.

I wouldn't mind but the o/p was from a period when her boyfriend moved in with her and her 3 kids. He never claimed anything and they all survived on her lone parent IS so they've hardly been involved in major fraud. God love 'em he's only 21 and now working to "keep his family" earning the minimum wage of 4.45 ph.

I don't understand why there is an overpayment.

If the situation is as you say then on what basis was an overpayment created?

Even if the LA were able to decide that your client was not "lawfully" entitled to IS and could therefore ignore the usual disreguard of all income and capital applicable to CTB where the claimant is in receipt of IS, they they should still have calculated any "underlying entitlement" based upon them as a couple with their actual Income and Capital. From what you say they should still qualify for full CTB.

Ask to see the details of how underlying entitlement was calculated. It may well be the case that they have "forgotten" to do this.

All this is in hand at mo but until we get a result it's the council tax bills which are the concern.

Where an appeal is lodged it is common practice to put the recovery of the overpayment on "hold" until the appeal is heard. This is certainly the view held by the Ombudsman so if the LA refuses your request to delay recovery you could threaten an ombudsman complaint.

They have put recovery of HB on hold.

I thought it was different with c.tax and they could simply add it to the bill? CTB(Gen)Regs Reg 87

Where can I access the info about common practice you mention so I can put it to the LA?

Many thanks
Sue

Para 6.50 of the Housing Benefits/Council Tax Benefits Overepayments Guide.

There is no legislative requirement to halt overpayment recovery if an appeal is lodged, but it is considered good practice to do so. As it is recommended that recovery action should notcommence until appeal rights have expired, this scenario should not happen very often (possibly
only in the case of late appeals)

Letter received today - "This department does not withhold recovery action on accounts even though there may be a query relating to Council Tax Benefit".

Seeing as our council is always blowing it's own trumpet about being beacon status I'll try the good practice bit

Sue

Mr Commissioner Rice at para 6 of R(SB)5/91 (quoting from and earlier decision CSB1158/1982) said:

“Accordingly until adjudication is complete the Secretary of State has no right to recover."

Ms Commissioner Fellner at para 15 of CIS2654/99 held that adjudication is complete only once it can be taken no further

"15. I agree with the submissions on behalf of the Secretary of State that the appellant was entitled to the benefit of paragraph 25 of Schedule 1B until the day before my colleague’s dismissal of his application for leave to appeal, ie until 29 3 99. I agree with the holding in CIS/210/1994 (Mr Lewis assured me that he had found no adverse authority on the general principle) that the "determination" of an appeal occurs only once it can be taken no farther, and not merely once a tribunal has reached a conclusion. Indeed, it might be said that an appeal continues to be undetermined until any time allowed for appealing (or applying for judicial review of) the latest decision has elapsed"

I would argue that the Commissioners decisions I have cited support the argument that Councils have no right to recover overpaid HB or excess CTB while an appeal is still pending.

What Councils fail to understand is that while the law supports them in that they can pursue council tax debts while someone is waiting for a CTB claim to be determined, this is not the same as saying the law supports them in prematurely recovering excess CTB by redibiting the CTAX account while the excess CTB decison is still in dispute.

I see no reason why you could not argue at the magistrates court that when CTB was initially allowed, it discharged the person's liability, and that will stand until the Tribunal or the Commissioner has concluded the issue

Good un stainsby. Letter to LA will be winging it's way by end of day with my comments plagiarised from both you and jmembery.

My two penneth for what it's worth.

Underlying does not constitute an appeal, and original post doesn't make it clear whether an appeal has been lodged or indeed the client is persuing underlying entitlement. I presume OP is based on undeclared partner who was working full time. Therefore nil ent to IS would create the OP, underlying based on new circs would be standard with the usually month to provide all information time limit. In this case the council would be at liberty to collect on the arrears as they would have established that the OP was recoverable and therefore could re-debit to the account.

If however you client is disputing the LT decision and consequently the nilled IS then the OP has not yet been deemed recoverable until the appeal has been heard. In this case the council should be allowing this process to happen before attempting to recover.

So which is it? Guidance states that if the OP is recoverable the amount can be redebited, the OP is then arrears and recoverable under council tax law. In you clients case if she is not disputing that her partner was resident, I presume this applies. There would also be the extra 25% (single person discount) to ramp up the OP.

The end of IS does not of itself end entitlement to CTB, it merely estabishes the ground for supersession and is the first step to the outcome overpayment decision.

The next step is the gathering of information that is needed to make the outcome decision. That may simply be a matter of collating information already held, or it may be a matter of asking for more information.

If the LA makes an outcome decison based simply on the end of IS without finding out about the persons new circumsances, then unless an extended payment is awarded, in my opinion the outcome overpayment decision has been made prematurely, but in any case recovery should not commence until at least 1 calendar month after the decision in order to give time for an appeal to be submitted.

Apart from the arguments I have outlined, it can also be argued that premature recovery is in breach of Article 6 of the European Convention on Human Rights

OwenK, I assumed my original post did describe the circs although I admit I didn't actually say an appeal had been lodged but did say one was ongoing. My client was a lone parent claiming IS. He moved in and they lived on her IS. He had no other income.

Yes the decision has been appealed and yes we have asked for underlying entitlement to be considered. The 25% has now been applied in retrospect but it should have made no difference as they would have been in receipt of IS/JSA anyway had they made the claim together.

Sue

A decision of Mr Commissioner Mesher CIS/4434/2004 could be very useful here because he held that a determination that someone was now living with a partner was of itself insufficient to form the basis of a superseding decision that the person was no longer entitled ot IS.

You should threaten judicial review. LA is clearly wrong in collecting excess CTB whilst appeal is pending. Even if they have the power to do this, it is clearly a failure to properly exercise discretion not to recover and therefore jr-able.