Hi all,

A simple one for you I would imagine..

Tnt has small o/p which has just been raised. Accrued due to IS stopping as she started working. Presumably she failed to inform the LA.

However I know that during the same period she was a victim of dom violence. I have evidence from the LA's DV Team that they created a sanctuary room just after the period the o/p accrued.

As such, it could be that the tnt failed to inform the LA due to the DV issues - would the fact that she was suffering from DV during the period in question and that just after the DV Team were working with her be grounds to ask for a revision / appeal..?

Or is there another way I could proceed with this.

Because of her circumstances I have recently managed to get a 5 month backdate of HB...

P.. x

Wed 27-Jan-10 04:42 PM by jmembery

I think you have more chance asking the LA to write the overpayment off due to circumstances rather than an appeal.

The OP is recoverable under all circumstances unless it was caused by an error by the LA or DWP that your client didn't contribute to. (If your client didn't report the change in circumstances to the LA it will be very difficult, but not necessarily impossible, to prove no contribution).

I would suggest a letter to your client's local Councillor, copied to the Benefits Manager explaining your clients circumstances and pointing to the fact that the DWP must have been slow in reporting the change to the LA. (Requests for write offs of HB overpayments are more likely to be successful if you don’t take a swipe at the LA, but the DWP are fair game). Go on to explain that recovery at any level could cause your client exceptional hardship due to circumstances and, recovery of the OP over an extended period would cost the LA quite a bit in recovery costs so it would be in the public interest to write off.

At the same time request a statement of reasons for the overpayment so that if they refuse the write off you will protect your clients ability to appeal.

Thanks for the information.. I will do exactly as suggested.. x

Is there any extended payment involved here?
If there is, have a look at CH/3083/2005 as the alleged overpayment could well have arisen due to official error

CH/3083/2005 won't be any use if overpayment is after October 2008 as the extended payment rules changed then and claimant no longer make a claim for it.

Thu 28-Jan-10 04:37 PM by stainsby

I am not so sure that the new rules after October 2008 have the consequence that CH/3083/2005 is no use because although the claimant no longer has to actually make a claim for an extended payment, this is only because S32(4) of the 2007 Welfare Reform Act provides that:

"(4) A person who is entitled to housing benefit or council tax benefit by virtue of subsection (2) must be treated for all purposes—
(a) as having made a claim for that benefit, and
(b) as having complied with any requirement under or by virtue of any
enactment in connection with the making of such a claim."

The person is treated as having made a claim and as "having complied with any requirement..."This implies that the secretarry of state will consequently be treated as having received that claim, and must deal with it accordingly.

The LA will make a decision on entitlement to EP automatically without the need for a claim. If it has decided that there was no entitlement to a DHP that decision is appealable. There is no issue of LA error.

If it is appealed and won then there will be a period of entitlement that will reduce the overpayment.

This is, of course, on the assumption that firstly the LA hasn't already awarded a DHP and secondly, that there is entitlement to a DHP in the first place.

I still think the write off route is simpler.

The point is that in cases where a person started work and there is a question of an EP, it is still arguable that because of the structure of the legislation, a person is entitled to rely on the secretary of state passing the relevant information on to the LA.

If the secratary of state does not pass the information on, that of itself is an official error that can be held to have been the reason for a consequent overpayment

If the secretary of state does not pass information on to the LA that is only an official error if an officer of the DWP specifically told the claimant that they would pass the information on.

This really doesn't happen that often.

As far as the EP is concerned reg 72 contains none of the requirements of old Schedule 5A requiring the secretary of state to certify entitlement.

My argument does not stem from Reg 72 or any of the secondary legislation but from S32(4) of the 2007 Welfare Reform Act, which I repeat:

"(4) A person who is entitled to housing benefit or council tax benefit by virtue of subsection (2) must be treated for all purposes—
(a) as having made a claim for that benefit, and
(b) as having complied with any requirement under or by virtue of any
enactment in connection with the making of such a claim."

"Because of her circumstances I have recently managed to get a 5 month backdate of HB..."

Does this include any time when she was working? If so this indicates prima facie entitlement to HB/CTB even when not on IS and so may be there's no OP at all or a reduced one.

LA may have not applied reg 104 HB Regs correctly before making the OP decision.

Ending of IS does not per se mean that HB/CTB is not payable/has been overpaid.

Very common LA mistake - thinking that just because JSA/IS/IBESA has stopped there is no longer any entitlement to HB. There are no grounds for making a disentitlement decision without investigating claimant's capital and income and other circumstances.

Wow.. a lot more than I expected there...!!

Thanks for the information - I have requested a write off based on DV issues at the time the o/p accrued - proof available and also based on poverty and hardship regarding collecting the debt now..

Hopefully that will be good enough but doubt the LA will consider a write off.. never had them agree to one in the past.

I think you are unlikely to get the o/p written off; if her income during the period of the o/p was more than passported benefits amount then she was paid too much HB.

The claim has been backdated because of the DV which is a good decisiont. Regarding the o/p may be make a case so that the recovery from her ongoing HB is the minimum it could be.

Sorry? What?

As a matter of law, recovery of any OP can be waived. Each case must be considered on its merits and there must not be blanket rules about when an OP will or won't be waived. It's a basic administrative law principle.

Having an income above HB level would not be grounds for refusing to waive an OP where there are other reasons for considering waiver - for example, hardship, debts, difficult personal circumstances, etc.

Refusal to waive recovery can be challenged by judicial review and/or going to the Ombudsman (normally after working way through LA complaints procedure).

I have asked for write off on the basis at the time the o/p accrued - she was suffering from DV - the councils own DV team were assisting her and created a sanctuary room just after the o/p accrued. Now its been raised she is on reduced income - £75 pf IS (due to deductions..??) and no TCs even though she is a single parent...??? HMRC state she has had her entitlement til April already so she is not entitled (think I will raise another query ont he appropriate section of this site)...

So cannot afford to repay this o/p back via a clawback... due to severely reduced income... Will update you on the outcome.. Im not envisaging a positive response myself.. But will challenge if applicable.

The new post about the TC situation can now be found here:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=104&topic_id=3896&mesg_id=3896&page=