Help!

As the landlord of many supported housing projects, the majority of all HB payments come to us direct as our tenants come under the 'vulnerable' category for HB purposes. One of our tenants completed a HB form, duly ticking the box for the payment to come direct to us. The claiming process was quite lengthy due to complications but eventually a decision was made. A giro was issued with the backdate - it went straight to the tenant (over £1000). Needless to say, the tenant is now a former tenant having done a midnight flit with a rent account showing hefty arrears. Despite her denying receipt the giro shows as being cashed. The Foyer Manager wrote to the LA. They admitted their error but stated that we should seek to recover the money from our former tenant as they are not going to pay HB twice. I don't think this is fair - especially considering that the LA seek to recover overpayments from us quicker than they actually occur if it is our fault!

Has anyone got any advice on where we stand. Do we have a case to argue considering it was an official error?

I would go for compensation for Maladministration, much easier.

There is no overpayment of HB as such, and HB direct to landlords is discretionary, (but of course that discretion must be exercised reasonably.)

Hi Denise, are you any further forward with this? I have a similar case where out of the blue a months payment of HB has been made to the claimant rather than his landlord.

Whilst at the moment the LA are refusing to re-issue the payment, the decision as to whether or not to pay the landlord is appealable to the Appeals Service. You should exercise your appeal rights there if the LA is (has) making payments to the wrong person.

I know that there is an advice agency in London that has successfully taken this issue to TAS, and been successful, (oh I wish I could name it so that you could contact them, (or they could make available) for copies of their letters etc). If you are reading this, you know who you are, why not come forward....

Anyway, if the LA has not exercised it's discretion as to whom to pay judiciously, and/or even if the LA has made an error at the payment stage, and just mistakenly posted that payment to the wrong person), it is still an error that carries a right of appeal to TAS, (as well as going to the Ombudsman for mal-administration, which I would do anyway).

You are very likely to win at TAS if the claimant has requested payment, and the LA paid an incorrect person. The local authority will then have to re-issue the payment, and then chase the original payee for any overpayment, (the overpayment will of course be none of your concern, nor that of TAS, as that will not be a matter ‘obtaining’ at the time of the decision before the tribunal).

Excercise your rights... this is rightsnet after all....

I'm not entirely sure that a landlord could appeal, are they a "person affected" ? I think not.

If this situation had happened in this LA the landlord certainly wouldn't have received a decision against which to appeal !

One might argue that a landlord should have received a decision that they would not receive the payment !

So if this is the case what avenues would be open ? Possibly maladministration and/or Judicial Review.

Sorry Julian, you are very wrong indeed...

See Reg 3 (1) (e) of the HB/CTB (D&A) Regs 2001. That reg SPECIFICALLY grants the right of appeal to landlords regarding to whom payments should be made. Not only are landlords to be treated as persons affected, that reg clearly states landlords have rights to appeal regarding the use and discretions as to whom should receive the HB payment, (which is odd in itself, as the D&A regs are unclear on most other isues, so why this should be an exception beats me, but there you go...)....

Forget LGO/JR (unless you also want compensation for the LA's mistakes), go to TAS !!!

Hi

a few years ago something very similar happened at this authority. A very large cheque was sent to the claim who then left the property and di not pay his o/s rent to the l/l.
The ladlord contacted the Benefits department, and it was agreed without too much argument to oay the money again to the landlord as it was felt that an error had been made by the Local Authority, we were then left with a recoverable overpayment. (I do not know if it was recovered as was a Benefits assessor at the tiem).

To prevent this happening again, if any adjustments to a claim results in a cheque being due for over a £100.00 a procedure is in place where the tenant has to provide a letter from the landlors to confirm there are no rent arrears and it is ok for the claimant to receive the cheque.
In addition (we use sx3) when there is a cheque run all adjustments taht are for over £1000.00 are cheecked to make sure the assessment is correct ,and the cheque is going to the correct person.

Hope this helps, obviously this authority accepted we had made an error, and behaved reasonably under the circs. You could try this argument!

Did not check spelling etc before sending.

Any adjustments to a claim resulting in a cheque for over £1000.00 are checked and a letter sent to the tenant to provide evidence that rent is up to date.

Hb Specialists - Perhaps I am being pedantic but I was simply referring to whether a decision had been made.

I am sure that the commissioners would have a field day with this but I still think there is a very important issue here. What usually happens in cases where payments are made to the claimant rather than landlord is a "mistake" rather than a conscious decision not to pay the Landlord. My point was, that in the absence of a "decision" not to pay the landlord how might an appeal be brought?

It then raises the question of the prospect of success ? WHY would a tribunal or commissioner entertain a revision of the decision that led to the claimant being paid? Payment has been made, it could never be argued that it was made to the "wrong" person, it could be argued that had a different decision been made it would have been paid to a different person, but why would that lead to a revision of the decision?

Reg 94 is entirely discretionary which then raises the question (as was the case in the tribunal of commissioners decision on OP's and target for recovery)whether the tribunal or commissioners can interfere in those areas.

Is anyone aware of any old CD's that cover alternative payee decisions in other benefits (or is HB very peculiar)?

Julian,

Denise mentioned in her posting that the LA paid more than £1,000 to her tenant. This means that - unless her tenant's rent was at least £125 per week (unlikely I think) - that the MANDATORY reg 93 applies, not reg 94.

If the tenant asked the LA to pay the landlord and the landlord was expecting to receive direct payment, the landlord is a person affected by the decision to pay the tenant instead. Therefore the landlord has a right of appeal against the decision. This is true, even if the mandatory reg does not apply.

It looks fairly obvious that the LA has made an error here. It is a scheme for vulnerable young people. If they usually pay the landlord direct why did they not do so in this case? Does the LA believe that the landlord is 'not fit and proper'? Did they believe that it was in their claimant's overriding interest to end up homeless and in debt?

The landlord is entitled to answers to these questions and compensation for the loss caused by the LA's mistake.

Oh dear, this is becoming a bit of a 'ping-pong' isn't it?

1. On the question of appeal rights, I think that we can now all accept that landlords have a legal right of appeal as to whom should receive the payment, as legal provision is quite clearly stated in the HB D&A regs.
2. Originally, in your previous post, you raised an interesting point; that the landlord would not receive a decision letter on which to appeal, and the points that you now make about relevant ‘mistakes’ possibly not constituting a valid decision might, at first sight, also appear alluring.

However, a decision about whom to pay, is a decision in itself, regardless of the merits of whether that decision was a mistake or not. Look at it from this point, if you entered an incorrect income on a benefit claim on your system, much much lower than it actually was, you would not argue at TAS that the decision was not a decision just because it was caused by a mistake. I would suspect that your argument would run along the lines of “but it was reasonable for the claimant to have known that the local authority had made a mistake”.- So just because something is a mistake, does not make it a decision.

Secondly, the argument about the landlord not receiving the decision letter, is not relevant to the “decision” as to whom to pay. That is precisely why the D&A regs give landords the right of appeal. That reg “MAKES THEM A PERSON AFFECTED”. It is in fact in the landlord’s favour that a decision letter is not issued, as I can not see a District Chair refusing a late appeal, so long as the landlord makes an appeal as soon as they discover that the payment had been made to another party (whomever that might be, and so long as the appeal is made within 13 months of the decision).

Don’t get me wrong, I am not anti-LA on this, (in fact I had to look at referral to Commissioners’ on this same issue for a London Borough last year, where the LA had lost at TAS, (you see there is a right of appeal). In that case, I had to conclude that there was not a legal leg to stand on. The LA had, whether by Commission or omission, not paid the claim as per the claimants/landlords instruction. The claimant received the money, and ‘ran-away’ with it. The Tribunal concluded that the LA should have used it’s discretion ‘more wisely’. The payment had to be re-issued, and the LA had to learn from it’s mistake, and trace the claimant through RATs, and then seek to recover the resulting overpayment). I could tell you the name of the LA, and the advice agency that challenged the decision, (and made very good argument to boot), but then I might never work again, or worse…

All it takes is for landlords, (mainly RSL’s as most private landlords don’t/can’t pay for the advice, and/or are not familiar enough with the legal argument to mount the challenge themselves). Presumably, they just rely on the LA not making mistakes….

Let me put my penny in if I may.

I fully agree that the landlord has the right of appeal to TAS and I am also quite clear that there is nothing TAS can do about a prior payment. The fact that the money was paid in error does not mean that TAS can deem it as an overpayment nor award it again; recoverable OP or not. Nor can it involve itself in administrative issues.

This is similiar to the example I raised when the ability to withold a rent allowance was abolished. The LA decides to pay the tenant or landlord and the other party appeals. Getting to a Tribunal may take months. There is no power to hold the monies pending a decision by a Tribunal - the suspend power does not apply since there is no doubt as to entitlement. The Tribunal can only make a decision on where future payments go; they have no jurisdiction to decide that an overpayment has occurred (which they would have to do if the monies were to be paid again). There is no regulation that allows this.

I can remember that DWP said to me that the Human Rights Act now precluded giving the right to hold back benefit on any issue apart from entitlement.

Customers used to have the right to go to a Review Board against a Rent Officer decision, even though the Board had no power to intervene and in my view this is a similar case to that.

If I am wrong in this (and I would take some persuading), then the Local Government Ombudsman is precluded from intervening as there would be a statutory remedy.

Okay Peter, let me give it a try and persuade you (??)…

I must begin by accepting the advice you have been given. It is correct, but ONLY where the LA can justify/show the reasons for making it’s decision to pay one party or the other. Many people incorrectly use the ‘8 week rule’ to pay landlords and say it is mandatory, or binding on the LA to pay when there is more than 8 weeks rent arrears. That as we both known, (I hope and am sure you do), is incorrect as HB reg 93 (where payment IS to be made to landlord) has the overriding clause “except where it is in the overriding interest of the claimant not to make direct payments to the landlord”. So in issues of disrepair, arguments over services etc. as the claimant has a legal right to ‘withhold’ payments of rent, the LA can legally pay the claimant. The central issue here, is that the LA can justify and show it’s reasoning. In those cases, and the ones you argue, you are right… no legal argument could be put forward to render that decision as being incorrect.

However, the cases being discussed above, were on ‘accidental’ payment to an incorrect person, caused by a mistake. There could be no justification for the LA’s decision, this is where TAS could (and do), intervene. However, no overpayment decision could be before the Tribunal. The fact that the case reached TAS means the LA did not make the payment to landlord. The only matter that the Tribunal could consider would be the mater of the payment of a party other than the payee. I consider that an overpayment mater would not be ‘obtaining’ at the date of decision, and consider the examination of issues arising before a Tribunal has been examined in CH/1229/2002 (paras 8 – 24), to support my conclusion in that matter. The overpayment decision would be a decision that would be made in consequence of any decision by a Chair. That new decision would carry it's own right of appeal.

How am I doing??? So you are right, but only where the LA can give reasons for making payment to a given party, but what about where it makes a mistake (whether by commission or omission), and pays someone else??? Please let me know, as I could find no legal ground to challenge the decision of the Tribunal, and I found I was iunable to go to Commissioners', I had to accept the decision of TAS, and pay the landlord, and bill the claimant. What law would you have used?

OK so we agree except where there is a clear error. But you have advanced nothing that gives TAS the statutory right to revise a decision and pay the monies again .... and I think you are struggling with due respect. There is no power to pay more than the eligible rent and I fail to understand your reasoning on the overpayment. Either TAS would have to decide to pay the monies again or it would have to deem that the Authority had made an ultra vires payment, and tell it to create an overpayment. It can do neither.

Look at it this way. If the monies were paid both to the claimant and the landlord on appeal, what is to stop the matter going on to another Tribunal following a set-aside request and the process starting again? You yourself talk about a new right of appeal. The LA could end up covering the same rent many times over if some of the payments were deemed non-recoverable. There's a thought!

In my view, this is a clear example of administrative error causing actual loss where the landlord could claim compensation via the complaints and Ombudsman route or via the Courts if they so wished. There have been many such examples over the years.

Apart from that, I think TAS is already clogged with too many obscure legal matters. I pointed out in a response to a Commissioner direction recently that a basic backdating "good cause" case had somehow evolved into a complex matter requiring some years to get this far, numerous lawyers and costs.

Hello Peter, you have advanced an argument, but no law to back it up. I referenced my last post with law, you could at least do me the courtesy of doing the same to advance your position.

TAS do have the power to instruct to issue that payment again. That is precisely why reg 3 of the HB (D&A) regs exists. You know in all the posts people have placed to disagree with my assertion, not one has addressed that fundamental point! What would be the point in that reg? To assure you that I am not on thin ice here at all…

TAS do have the power to instruct the LA to make the payment again (see para 11 of CH/1229/2002 “An appeal to a tribunal under the social security legislation has always been regarded as an appeal by way of a rehearing: R(F)1/72, paragraph 9 and R(SB) 1/82, paragraph 10. The same reasoning now applies to appeal tribunals under the Social Security Act 1998.”- , Or perhaps . para 18 of CH/0396/2002 (these are but two of MANY, MANY, DECISIONS THAT MAKE THIS POINT… “On appeal against a local authority’s decision, the appeal tribunal has to undertake a complete reconsideration of the issues that arise. In effect, the tribunal stands in the position of the decision-maker in the local authority and makes the decision afresh”. QED… I think so…

As to the point about the HB scheme becoming overly complex, I would have hoped that was something you had been aware of for some time now. But the situation you describe is exactly how it is in practice. Any decision of TAS to re-issue the payment may give rise to an overpayment and yes it would carry a right of appeal, and yes it could have all sorts of ramifications if the second appeal in effect overturned the first, but that is where the legal argument of your appeals officers comes in. It is not however an argument just to dismiss a position to say that the courts (TAS) will become clogged, so lets not do it, (refer to the above Commissioners’ points before disagreeing).

You have advanced ‘common sense’ arguments, (see separate thread), but not legal ones. I have referenced my reasoning. Any person (landlord) wanting to give it a try please do, I am sure that you will win, (where and only where the LA had not deliberately made the payment to another person).

But if people want to go along with your arguement, who am I to say they shouldn't??? It's Friday, youv'e been a great audience... goodnight....

HB Specialists

you state

"TAS do have the power to instruct to issue that payment again. That is precisely why reg 3 of the HB (D&A) regs exists. You know in all the posts people have placed to disagree with my assertion, not one has addressed that fundamental point! What would be the point in that reg?"

It is not for me to say what the point of the reg is (it was clearly meant to have one)but I would like to offer the argument that both reg 93 and 94 of the HB regs include decisions which might well be superseded using reg 7(2)(b)(i).

You say that an overpayment could be created for the money already paid, how? An overpayment is "any amount which has been paid by way of HB and to which there was no entitlement" how can you say that there was no entitlement to the HB that has already been paid without such a decision resulting in neither party getting anything ?

You might have felt that you couldn't proffer an argument to commissioners, well I think I could and certainly would have done, it would be nice to get some resolution.

And finally lets not forget that this is a simple case of "non payment of rent" the HB scheme has safeguards in place which require a landlord to tell them when arrears exceed 8 weeks. To answer carol it is not for the LA to attempt to make any assessment of what the arrears position might be. I accept that a landlord would not necessarily notify an LA that eight weeks arrears existed in cases where they were already expecting payment to be direct.

The ombudsman has looked at such cases many times and has awarded compensation equivelant to the sum that would have paid, plus money for trouble etc. This has to be the correct route where a mistake has been made, the ombudsaman will assess whether it amounts to maladministration.

Julian, oh we are getting ourselves into a pickle arn't we?

First off, I think you have confused the law! All reg 7 (2) etc. says is that LA decision makers can supersede decisions, in the circumstances prescribed in that reg. A mistake as to law being one of those reasons. This surely backs up what I have been saying. Not only does reg 3 give landlords the right of appeal as they are a 'person affected' (you now seem to acknowledge that they are, whereas in your previous posting, you stated that that landlords were not), but the reg you have quoted even allows you to revise any mistake about whom actually received the payment, to be superseded. I thank you for supporting my position on that, but I do not think that was the intention. The regs are a complex set of laws, and I would advise careful reading before actually citing them as might now be apparent.

You have said that you would, and indeed could have made an argument to Commissioners' on this point. Yet, you do not say what that argument would have been, (tough I am glad you have not advanced any 'common sense' grounds, as if this thread proves anything about the debate going on in another forum on that issue, I think law overrides 'common sense' at least on this matter).

For what it is worth, I consider that Carol was indeed correct in her posting. Though you have replied to the ponts made again on a ‘Common Sense’ ground, stating (though the point has some validity), that it is not for the LA to decide what the level of arrears might be. However, HB reg 94 (1A) gives a wide-ranging discretion in deciding to whom to pay. That decision is appealable to TAS, (reg 3, and paras 1 (c) & 1 (d) of the HB/CTB (D&A) regs), so the level of any calculation of the 8 weeks rent arrears is a matter of degree(s). You have also chosen to ignore the references to Commissioners' having the power to completely revise your decisions, as if they were the decision maker making the decision afresh... in addition, what about this...

"Although it is not for me to tell local authorities how to organise themselves, it would only assist the Commissioners if observations were made by persons who are in a position to take a detached, objective and realistic view of the grounds on which a Commissioner has granted leave to appeal. The Secretary of State has taken that approach. That has allowed the Commissioners to devise a series of case management directions that are given when leave to appeal is granted. They reflect the complexity of the issues and the likelihood of the appeal being allowed, as viewed by the Commissioner when granting leave. In appropriate cases, they allow for the expeditious disposal of cases in which the tribunal was clearly in error. We are unable to adopt similar procedures in housing benefit and council tax benefit cases, because of the lack of realism and objectivity in the observations we receive. Commissioner Jacobs… Para 33 CH/1229/2002.

In this instance, I can only agree with that sentiment… I can cite Commissioner's decisions until I am blue in the face, (though the above quote is not directly relevant to ‘persons affected’ it makes the point, especially as my previous references have not been addressed, at all). Anyway, I have proffered my opinion in relation to the question first posed. I consider that I have quoted sufficient law to back up my position but in the context of this argument, I have nothing more to add.... other than to say that I am happy to accept people disagree with me, (Chairs do it all the time), but please try and quote law to back up what you are saying, it really does help…

Toodle pip....

I'm obviously not very good at explaining myself OR I am wrong, but what I can say is that you could do much worse than to take the advice of Commissioner Jacobs. I hope that my view doesn't create the impression that I defend poor administration, or that I am not objective.

Perhaps an illustration by way of an example will help:

1. Claim made 01/01/04 with pay to landlord ticked.

Claim determined and paid to tenant 01/02/04.

Landlords appeals 01/03/04 against "the decision" made 01/02/04 (my argument is that if no decision is made "not to pay" the landlord, then there "may" be no decision against which to lodge an appeal. Lets assume that a decision was made) the landlord exercises their right to appeal as conferred by reg 3 D&A, the authority consider the appeal but decide that they are unable to change it. They refer to TAS.

TAS look at the appeal and conclude that the claimant is overpaid because they received money to which they were not entitled, and decide that the money will now be paid to Landlord.

I request a set aside on the basis that:

"The decision that the claimant has been overpaid is wrong in law. An overpayment of Housing Benefit is defined as "any amount ...and to which there was no entitlement", in this case there can be no decision that gives effect to that outcome. I also submit that in calculating any OP the authority shall deduct any entitlement that falls to be calulated under regulation 104, and that any resulting entitlement could not be used to discharge payment to the landlord."

I would hope that TAS sees the error of their ways and agree to the set aside, if not I seek leave to appeal and hopefully am successful.

If I am then asked for my observations OR in response to a direction I am asked to rehearse the decision that I think the commissioner should give, I would say.

"That were the commisioner to find any merit in the Landlords appeal, the decision of 01/02/04 might be superseded using reg 7(2)(b)(i)(D&A)or in any event upon application by the tenant. (And in cases were payment to landlord was not an absolute) I would also expect that the needs of the claimant be taken into account and that their wishes in relation to future payment be considered."