I'd appreciate some help with this as it is a bit outside my usual area:

My client is the executor of a small estate. The person died some 4 years ago. There was no grant of probate as only about 5k was involved. They have now been sent a council tax bill for approx £700 which apparantly results from an "adjustment of council tax benefit" dating from 2001. No notification of this adjustment has been sent to my client, but the council could argue that it has been sent to the last known address (on the other hand the council tax office know of the executors address and this can only be because they were told of the death.

My questions are:

1) If the notification has been sent somewhere else can I argue that there has been no valid notification (We know the CT office knew the new address for correspondence, but not whether the CTB office did)
2) Is any recovery time barred as more than 6 years have passed?
3) Is any liability one of the estate or the executor?

Generally speaking (although Ariadne will know more about this than I) the executor (if probate) or the administrator (if no probate) should advertise in 2 papers (traditionally The London Gazette and one other) for creditors to come forward and claim on the estate. If they have not come forward after (I think) 2 months the estate can be settled (all other things being equal). If the creditor does not come forward then they have no future claim on the estate or the beneficiaries and they cannot recover from the executor/administrator. If the executor/administrator does not follow the procedure and the estate is settled then the creditor can sue the executor/administrator for damages. Your client should seek legal advice.

As for time limits. If a liability for the council tax has already been granted then the LA can enforce that at any time. If not then the LA has 6 years from the date that the liability accrued to seek recovery through the courts.

Fri 02-Oct-09 04:58 PM by Kevin D

No notification of this adjustment has been sent to my client, but the council could argue that it has been sent to the last known address (on the other hand the council tax office know of the executors address and this can only be because they were told of the death.

I wonder if CH/1764/2008 assists. In short, Dep Judge Mark found that DAR 2 didn't apply to info/evidence requests under working age HBR 86 (paras 10-13) and, therefore, the request had to be positively communicated to the clmt. I wonder if this extends to notifications issued under HBR 90? If so, the LA has failed to notify the clmt (or the estate) under the HBRs (whether the working age OR pension age regs).

No notification (at all) = decision(s) to be of no force or effect - "Anufrijeva".

A much more recent UTD also raises interesting questions about the liability of estates. I haven't had time to analyse it yet, but see what you make of CH/0448/2009.

Both the UTDs mentioned above are on the UT website. "Anufrijeva" is on "bailii" (see the HL judgement @ para 26).

Sorry, I don't know enough about the Limitations Act to offer a response in this context.

Been on my hols (Norfolk is very nice but windy at this time of year).

The advertisement procedures under s 27 of the Trustee Act only protect the executors from an action by disappointed creditors for wrongfully distributing the estate. It does not prevent a claim against the beneficiaries who have been unjustly enriched at the exense of the creditors. However, if the beneficiaries are entirely innocent of all knowledge that there might be this debt, then the amount can only be recovered from them if they still have the property in an identifiable form like cash in the bank or something bought exclusively with the money(this is called "tracing".) If say they reasonably acted in reliance on the legacy to do soemthing like pay their debts, or pay for day to day living espenses.

If the ads weren't placed, then the executors are personally liable for the debt.

I'd argue that the estate was very small, has been distributed in good faith to beneficiaries who had no knowledge of any debt, and that they have spent it on paying debts etc so that nothing can be traced.

Is there any evidence that the debt had even been identified at the date the estate was distributed?

No- There is a record that the council tax office were written to informing them of the death and they were asked to make all claims by a set date.

sounds like your client executor needs to see a solicitor, and that the council is going to struggle to establish they are entitled to anything, given ariadne's view and that the council knew of the death at the time etc.

Its possible if not probable that the CT office and the CTB office are in fact one and the same, and given that their functions are intimately linked, a breakdown in communication between them can result in official errors.

The argument is supported by Mr Commissioner Howell as he then was in CIS/1887/2002. That case involved an award of incapacity benefit to a claimant who already had an award of income support. The Commissioner held (drawing heavily on the principles held by the Tribunal of Commissioners in R(SB)15/87 that there was no failure to disclose by the claimant given that both benefits were administered by (admittedly different sections of) the same office


Its also supported by CH/2567/2007, decided by Mr Commissioner Levenson as he then was on 27 March 2008. He wrote at para 21

“21. The repeated failure of the Housing Department to either pass on the relevant information to the Council Tax & Benefit Service, or to advise the claimant to do so, amounted to an official error. It is not reasonable, in view of the confusing nomenclature (such that even the Benefit Appeals Officer got it wrong and the tribunal was confused), the proliferation of correspondence, the repeated notification of the relevant facts to the Housing Department, and the added layer of correspondence and confusion that must have been caused by the judicial review proceedings, to conclude that the claimant materially contributed to the omission that amounted to the official error, even if it is correct that he did not notify the designated office (which I do not really have to decide). In view of the claimant’s daughter’s complicated benefit position (involving three different DWP benefits), the repeated recalculations and adjustments (and as I indicated above, even the first overpayment calculation was incorrect) it cannot be said that the claimant could reasonably have been expected to realise that there was any overpayment.”

The retrospective bill cannot be valid if there has been no proper notification sent and appeal rights given, because there should be not recovery of excess CTB until the appeal process is exhausted.

In my view, there has been no proper notification given that the Council knew of the death, and the address of the executor of the estate

Tue 13-Oct-09 04:08 PM by stainsby

Recovery may not be statue barred because the limitation act only kicks in once adjudication is complete (R(SB)5/91)

The Commissioner also noted in R(SB)5/91 that there is no right to recover until adjudication is complete so the LA can not have it both ways

Wed 14-Oct-09 03:03 PM by stainsby

In relation to an overpayment of HB paid to a deceased persons landlord, Judge Mesher wrote at para 16 of CH/0448/2009

"16. However, there is a much more fundamental problem. It is clear that where there has been an overpayment of housing benefit during a claimant's life a decision can be made after the claimant's death against a duly constituted person representative of the estate that the overpayment is recoverable from the estate. That follows by analogy from the old decision of Secretary of State for Social Services v Solly <1974> 3 All ER 922 (discussed in paragraphs 29 to 31 of R(IS) 6/01). If the housing benefit has not been paid to the claimant, but to the landlord or some other person, the prescription in regulation 101(2)(b)(i) of the Housing Benefit Regulations 2006 of "the claimant" as a person from whom the overpayment can be recoverable extends in principle to the claimant's estate after death. But in my view that can only apply to cases where the overpayment was in respect of periods before the claimant's death. The liability to make repayment can then perfectly properly be regarded as a liability of the claimant's estate. But here the claimant had no liability to make repayment at the date of his death. There had been no payment in excess of entitlement at that date. If a local authority continued to make payments of housing benefit direct into a claimant's bank account after his death, it seems to me that those amounts could not be recoverable from his estate through a personal representative on the basis of a liability of the claimant as such or even as the person to whom the benefit was paid under section 75(3)(a) of the Social Security Administration Act 1992. It may well be that the local authority would have a right to restitution of the amounts under common law principles, but not in my view under the statutory machinery. If so, then there cannot be recovery from "the claimant" when the benefit was paid after the claimant's death to the landlord. My conclusions here can only be provisional, because I have had no specific submissions on the point and there are conceptual difficulties. However, they are firm enough in the light of the attitude of the parties for me to proceed on the basis that it was proper for the local authority to make the overpayment recoverability decision against the landlord alone. The tribunal's decision can then be re-made on the same basis."

It seems to me that in relation to excess CTB, that decision that excess CTB is recoverble can only be made against the deceased estate, but it cannot be notified or become effective until the deceased has someone to represent that estate (ie an executor).

Again, its not emough for the LA purport to issue a decision notice to the deceased "last known address" in those circumstances (see also CH/3631/2007 and R(IS)6/01)

Thank sofor all the helpful comments. Following a complaint along the lines suggested the LA have now withdrawn the bill and the account shows no amount due.