I have a problem. My client had hb terminated retrospectively - creating an overpayment. As a matter of policy (I think it gets them better subsidy)the LA prefer to award backdated benefit rather than offset with underlying entitlement. This means their assessors are not very clued up on UE.

The LA did not ask for reg 104 information but invited a new claim. The client is not claiming for the period after the O/P but submitted the form anyway.

The authority did not accept the income information provided and lapsed the claim under reg 76. I have argued with them that the client wants a reg 104 determination and this is not a claim. They have refused to look further and continue saying the claim is lapsed due to backdating and lapsing rules.

Can someone point me to CD's or regs that control underlying entitlement assesments?

First of all there is no such thing as the lapsing rules.

Reg 76 only says that the authority is under no duty to decide a claim if Reg 73 is not satisfied.

Reg 104 is actually mandatory. It is by its very nature retrospective and the LA SHALL deduct any sum which would have been payable etc etc.

R(H)1/02 and CH4065/2001 both confirm that the burden of proof is on the LA to show recoverability of an overpayment.

The recent Court of Appeal ruling Adan v Secretary of State reinforces the notion that there does not have to be an application for so called underlying entitlement, it ought to be simply a determination of fact.

The judge held in R v Westminster City Council ex p Berisha (1998) that the Council has no power to treat a claim as withdrawn if information is not provided within 4 weeks. The time limit can be extended retrospectively and the Council is not precluded from deciding a claim at any time.

I would put in an appeal regarding the overpayment. If your cleint is outside the one month time limit make it a late application on the ground that the appeal has a resonable chance of success

I agree with Stainsby... the LA MUST deduct the amount of any benefit that was otherwise 'properly payable'. The CoA decision in 'Adan v. L.B. Hounslow' is useful here. Whilst that case considered the use and application of the 'old version' of HB reg 104, it is nonetheless very instructive... see para 24 (and onwards) of that decision, you might find it useful...

You might also need to consider what information the LA considers it must have to decide and calculate u/e. The LA does not have to calculate u/e if the benefit claimant does not supply the information requested to enable the LA to do so... However, the LA should not be asking for information that is 'burdensome' to the benefit claimant, (CH/999/2002 which although that decision dealt with evidence and information under HB reg 73, and VF, it might prove useful in 'guiding' the LA, and or TAS)...

Good luck...