We have an OP of HB caused by official error and the LA are using the above caselaw to argue recoverability.

It seems that the three tests applied in this case leave little to no wriggle room for a landlord to argue that the overpayment should not be recoverable.

The facts of this case are that a couple split due to DV. female partner left property temporarily at first but finally confirmed she was not moving back. male partner stayed at property. HB was split 50 / 50 and when change of address was confirmed by female partner, male partner was awarded 100% which was mistakenly paid back to cover the period that the ex partner had been receiving her 50%.

It took LA 12 days between award of backdated benefit and issue of the overpayment notice. The LL is a large RSL with a lot of Income Officer involvement in this case.

Any ideas? We have a pre appeal meeting with the LA today.

Wed 26-May-10 08:29 AM by Kevin D

In my view, with experience on both sides of the fence, the overpayment is recoverable for the following reasoning.

It is plainly an error by the LA. However, it is difficult to see how the LL could succeed in arguing it couldn't reasonably have been expected to know there was an overpayment. The LA would, presumably, argue the info would be apparent from the schedules of payments sent to the LL.

Of course, there is nothing to lose by pursuing the appeal. You might strike lucky insofar as maybe the LA doesn't present well at the Tribunal (unlikely given that they are aware of the relevance of legal authorities) or, if you're really lucky, perhaps you get a very "helpful" Judge.

But, based on the info given so far, if I was given a choice as to which party to present for (assuming that "winning" was the yardstick), I would undoubtedly take the LA's case.

Edited to add: You could try a technical argument if the decision notices are deficient. But that normally only puts off the invevitable in that the LA can simply rectify deficient notifications.

What's the "pre ppeal meeting with the LA" you refer to? The law has no provision for this.

Thanks Kevin, you've confirmed what I thought.

Neil - It's a liason meeting where the matter was to be discussed, nothing to do with the formal process as such but management hoped to be able to persuade the LA not to recover.

My advice has been to accept recovery.

There's a lot to be said for trying to persuade a decision maker to revise a decision without having to wait for a Tribunal hearing.

However, experience has taught me that some managers in third sector and public sector bodies try to "negotiate" a solution to benefit legal problems (in the same way they would to a funding or human resource problem) rather than relying on an advocacy approach before a Tribunal. Different types of problems require different approaches.

The "negotiated" approach to resolving benefit problems can not only disempower service users but invariably ends up with a worse result than if the matter had been properly argued before a Tribunal. And off course the LA feels better about it and won't go into an adolescent sulk like some do when they lose a Tribunal.

We need to be very wary of extra-legal approaches to benefit problems.

I'm not suggesting this is what is going on here, but I hope it clarifies why I asked the question!