My client sent a letter to Hosuing benefit department on 10/02/09 to say that her working tax credits had reduced in the hope that she would receive more housing and council tax benefit. Only problem was housing benefit say they did not know that client was receiving any working tax credits at all and this generated an overpayment. However housing benefit did not adjust the clients award to include working tax credits until 30/05/09, creating what I see as an unecessary overpayment between 10/02/09 to 30/05/09. In their submission the housing benefit department admit that there was a delay in processing the clients letter of 10/02/09 but say this was because there was nothing in the client's letter to indicate that an overpayment was occurring, (which there wouldn't have been as she did not know she was being overpaid) but I cannot find anything in HB legislation to justify this decision, is anyone aware of what legislation this might come under and any defenses. The client also gave HB a copy of her tax credits award notice on 10/02/09.

What HB are saying is nonsense. You client disclosed the fact that she was getting tax credits on 10 February 2009, and the Council's failure to act on that information for 3 months is an official error. ( I would say not much more than 14 days should be sufficient for the Council to get round to acting., although 24 days was allowed in CH/0858/2006 by Mr Commisioner Jacobs as he then was, but in the same decision he held that 57 days was far too long )

I would question why the Council say they did not know about the tax credits before 10 Feb 09, gven that your client was under the impression that the Council did know. Can your client throw any light on this? (Its one thing for a Council to say they have no record of an event (such as your client disclosing the award of tax credits), its another to prove the event did not happen. It will all depend on the evidence (see R(SB)10/86 and CH/4065/2001).

In your case you have a delay of some 79 days, clearly an official error.

The only other question is whether or not your client could reasonably be expected to realise she was being overpaid.

See Circular A24 2008...and don't blame me I'm just the messenger.


How it will work
32 From 1 April 2009, once an LA receives sufficient information for them to process a change of circumstances, if they do not process that change of circumstances before the customer’s next payday, they will have to make a decision on whether the overpayment, from the Monday following receipt of all the information, should be classified as an LA official error or an Administrative delay.

33 If the delay in processing the change of circumstances was caused by a mistake, for example the LA put the change of circumstances information to one side and then forgot to process it, the overpayment should be classified as an LA official error.

34 If however, the delay in processing the change of circumstances was due to something out of the LA’s control, for example staff shortages due to sickness, or if they had prioritised their workload, but they were unable to process it because of a backlog, the LA may decide that the overpayment should be classified as an Administrative delay.

35 If the overpayment is classified as an LA official error, the LA must then make a decision on whether it is recoverable. Could the customer reasonably have been expected to realise they were being overpaid at the time of the overpayment or any notices relating to the payments of HB/CTB that were overpaid? If the customer couldn’t, the overpayment is not recoverable.

36 If the overpayment is classified as an Administrative delay, the overpayment is recoverable. This is because all overpayments of HB and CTB are recoverable except certain official errors. As the LA has made a decision that the overpayment was not caused by a mistake and is therefore not an LA official error, the overpayment is automatically recoverable.

Tue 14-Jul-09 11:27 AM by stainsby

Its a good job circulars have no legal status.

This particular one would make excellent fertiliser for my garden, at least as good as farmyard manure

Tue 14-Jul-09 12:05 PM by Kevin D

I cannot wait to assist a clmt and for a LA to cite A24 in support of an overpayment decision. Just ask one question with, possibly, one follow up:

"And, can the LA tell the Tribunal precisely which part of the administrative legislation was amended to reflect the DWP's advice in A24?"

**scrabble through papers....**

"Er, no".

Possible follow up...

"So, in summary, all the pre-existing CDs which look at the issue of delays in processing are not in any way negated and the DWP's advice is, effectively, a waste of a cyber tree?"

"Correct".

Well certainly enough to get my teeth into, thank you for all your help. Now I have received the full bundle of paperwork I note that unusually (and suspiciously) housing benefit have not included a copy of the clients claim form in the bundle, instead using a form from Income support dated 2007, which as far as I can see has no relevence to this case. Not sure how HB can claim that client never informed them that she was on WTC when they cannot supply the form she was supposed not to have not included the tax credits on. Do HB make this stuff up as they go along. So I am pinning some hopes on this. Quite looking to the tribunal, should it come to that.

Yes I shall certainly use the above shoudl it get to tribunal stage.

Definitely get hold of ALL claim forms (whether or not constituting claims) and ask for ALL HB & CTAX notes / records however so held (e.g. including, but not limited to paper; archive; electronic).

In the event of this going to appeal and the LA refuses to provide docs/ evidence/ info (or, worse, has the temerity to say it counts as a DPA request), ask the Tribunal to issue a Direction requiring the LA to supply that same info etc - citing CH/3240/2007 should help.

I do hate to dampen down a good conspiracy theory but when your client stopped receiving Income Support and started working this is just a change of circumstances and they would not be required to complete a new claim form for HB/CTB.

There really is nothing strange in the latest claim form being an HB/CTB1 from 2007.

Compare one of the OTHER current threads on this forum, where the Council did stop HB when the passport benefit stopped instead of treating it just as a CoC. This council has at least done it right.

Yes but surley the point remains, that if HB are saying someone did not tell them that they were not receiving working tax credits when they claimed, or informed them that started work, surley HB need to come up with something to say that they were asked if they were recieving working tax credits and said no. Yes I know there may have been award notices sent to the client that may have not include working tax credits in the calculations that will work heavily in HB legal favour, but surley if HB are accusing someone of lying about not declaring working tax credits, surley it is not that unreasonable of us conspiracy theorists to want HB to have some evidence that the client was asked if they received WTC and said no. (Lying is the word accusation here as the client has now been asked to a fraud interview).

My advice would (normally) be for a person to refuse to attend an IUC, unless properly advised by someone who really does know benefits. Even then I would generally come down against attending - especially if the person is entirely innocent.

Ask for the documents. Everything.

Just a suggestion about what may have happened or what LA may suggest happened. IS stopped, your client started work, COC reported to LA but wages only as Tax Credits hadn't yet been assessed/paid. When Tax Credits awarded, client did/didn't update LA of additional income? Not suggesting which of the above happened but may be useful preparation to ask your client if they can remember if this was the case.