I have a client who seems to have put her nephew down in the Children's section on an hb form. The young man was 19.
A year or more later Islington said there was a recoverable overpayment based on this young man having a maximum contributions.

My client was NOT able to get verification from him and since then he has left her flat and is not in contact. She thinks that at the relevant times he was either a student or on JSA

Islington council is insisting that they gave a valid notice by saying the overpayment was caused by

"A Change in Occupancy".

Any suggestions as to how to take this further?

The actual information about the nephew was actually declared to the LA as per your post. Therefore any resulting overpayment is LA (official) error. Unlike other benefits, official error overpayments remain recoverable, if it was reasonable for your client to have known of the overpayment, at the time the overpayment occurred, (or any notice relating to the payments that were made), but not otherwise.

The facts appear to be that your client declared her circumstances correctly, albeit on the wrong part of the form. So long as the date of birth was correctly declared, it would have been for the LA to have queried matters further, and decided the appropriate level of non-dep deduction when the presence of the non-dep was actually declared to them. I do not think that it would have been reasonable for your client to have known of the appropriate non-dep deduction that needed to be made, (unless they were a former assessment officer or something equally as remote).

If the LA are now seeking for the claimant to try and find additional information about the non-dep, having accepted that the non-dep has vacated, their requirements may be unduly burdensome, (see paras 13 - 16 of CH/999/02 often used for VF, but relevant here I think).

I dont think "change of occupancy" is a valid reson for the overpayment as there was no change of occupancy as such.

A change of occupancy occurrs when someone moves in or moves out.

I would argue that the notice is not valid and cite R v Thanet DC ex p Warren Court Hotels Ltd (2000) to back the arument up.

You can then argue that the time limits for appeal start only when a valid notice is issued (CP4479/2000)

If all that fails and you are still within the absolute time limit, go for a late appeal on the grounds that the appeal has a resonable chance of success.

For the substantive appeal, go for the official error, and could not reasonably be expected to realise it was an overpyment etc argument, and also that the overpayment has been incorrectly calculated in that the Council must prove that the non dependant was working before the maximum deduction can be applied. (The Council bears the burden of proof (see R(H)1/02 and CH4065/2001))

If the Council did have information that your clients nephew was working, then you may be able to argue that the Council had clear information at the time indicating that further enquiries were neeeded. This may make the overpayment an aofficial error (CIS222/1991).

You may also argue that the cirumstances of the case are such that your clients uncorroborated evidence as to the nephews circumstances should be accepted (R(I)2/51 and R(SB)33/85)

If your client knows or can get hold of her nephews national insurance number, then the Council can use their own RAT system to get confirmation that he was on JSA, should that be necessary