I have a client who was overpaiad HB due to failing to provide information when requested and subsequent cancellation of benefit. They later successfully claimed a backdate of HB for the same period but instead of cancelling out the overpayment, the LA mistakenly paid out for the same period again. They are now recovering the original overpayment.

Is there any argument against this? I'd be very grateful for any assistance as its not something I've encountered before.

I've looked at this question several times now.

Presumably the original overpayment decision was made under reg 100 HBR and so would be open to challenge in the usual way. I don't think, and can't find anything to suggest, that the fact of the new 'duplicate' award over the top of the old one can or should influence a decision on recoverability, although I suspect decision-makers might have some difficulty with remaining impartial in this scenario...

That said, I do find it hard to believe there is no automatic right to recover mistakenly overpaid duplicate payments, especially as I'm sure the hold HB regs had something along those lines (but I haven't looked).

Over to you Paul...

Well gee thanks Tony! Just kidding! I’m going to leave recoverability under HB legislation to the Kevins or the Stainsbys of this world who have that info in their heads more concretely and readily than I as I don’t have time for the moment to look into it further.

But, I will say that duplicate payments weren’t included in the recent court of appeal decision on common law recovery. Therefore, I would have thought that the LA could pursue a claim for restitution on grounds of unjust enrichment, a defence to which is that the recipient genuinely thought they were entitled to the duplicate payment and has spent it.

Erm, gee thanks Paul.....

First question: does the payment count as HB? Depends on the exact circs. On balance, based on the info given so far, it appears to count as being HB. Relevant CDs/UTDs include CH/0765/2008; R(H) 2/08; CH/0180/2006; CH/2912/2007.

Assuming the payment(s) constitute HB, is the overpayment recoverable? I think it's pretty indisputable that it is caused by an error on the part of the LA. So, it would all come down to the usual considerations:

a) did the clmt (and/or payee) contribute to the cause of the O/P? Seems unlikely in this case.

So,

b) could the clmt (and/or payee) have been reasonably expected to realise there was an overpayment at EITHER the time of the payment or at the time of any notice relating to the overpayment?

The latter is a judgement call and will depend on the knowledge and/or the info available to the clmt / payee.

Thanks for the responses. Its the orriginal overpayment that is being recovered so unjust enrichment not appropriate. Its well out of time to appeal and there's probably no grounds in any event.

Thanks

"Its well out of time to appeal..."

Notwithstanding that there may be no grounds for appeal in this case, bear in mind that for HB/CTB, the statement of reasons "loophole" still exists. i.e. There is currently no time limit in which a SoR has to be requested and, once provided by the LA, there is a brand new right of appeal within 14 days of the SoR (with the additional "late" period of 12 months on top of the 14 days).