My client has a considerable overpayment dating from receipt of HB after he'd left the property. The overpayment was paid to the LL.

When he left he told the LL and the LL undertook to contact HB service at the town hall which s/he didn't and continued to receive HB for several months.

My client didn't approach the council benefits service directly and the overpayment has only come to light recently. He now lives in a different borough from that which deemed the HB overpayed.

The council who are owed the money have got a liability order over my client for the debt.

Clearly my client didn't declare a material fact. Am I correct in thinking that in these circumstances, as long as the council have issued the correct notifications, they have absolute discretion to target my client (and in practice aren't going to waver from this course now they have a liability order and client's new address)?

Thanks for your help

Dan

I cant see how there can be a "liability order" for an HB overpayment. The council may proceed to register the debt in the Councty Court but that is another matter. The Councl would have to show that all the correct adjudication procedures had been followed.

If a debt has been registered in this way, I would apply to the Court for it to be set aside. on the grounds that the Council have not issued the correct notices and given appeal rights to all the parties. The correct notifiactions must take the form of a single recoverability decision addressed to all the parties as is required following the Tribunal of Commisioners decision R(H)6/06.

I cant see how they could show they have issued the correct notifications in this case and I suspect that all the Council have done is pass the debt on to a debt collection agency who have no legal power to enforce anything. In other words you can call their bluff

The primary legisalation holds that the payee is the person from whom an overpayment may be recovered unless Regulations prescribe otherwise.

The relevant Regulation here is Reg101(2)(b)

"(b) in a case where an overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact (in either case, whether fraudulently or otherwise) by or on behalf of the claimant, or by or on behalf of any person to whom the payment was made, the overpayment is only recoverable from any person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made; "

Note the words here "insted of if different, the person to whom the payment was made"

If as you say, the landlord knew fine well that your client had vacated, he was just as much under a duty to disclose as your client. As he was also the payee, the words "if different" are now very significant. The person who failed to disclose here is not different to the payee, so the overpayment is only recoverable from him.

The primary legisalation provides for Regulations to prescribe a person of "as well as or instead of" the payee, as the person from whom an overpayment may be recovered. Regulation 102(2)(b) provides for a person "instead of if different", not "as well as" the payee if the overpayment was in consequence of failure to disclose. Where the payee failed to disclose, the primary legislation will hold, and the payee is the only person from whom the overpayment can be recovered