Mon 08-Dec-08 11:45 AM by christi

We recently wrote to a local council asking them to explain an overpayment decision that our client didn't understand. They wrote back explaining that the overpayment arose as a result of the client's income being higher than believed at the time of the oriignal decision due to the client failing to provide evidence of wages. This is probably fine.

However, the letter goes on to say that in checking the decision, the author noticed that the cleint'e occupational pension had been disregarded in full, rather than half of it being disregarded. An extra overpayment was raised, which the decision maker agreed was Council error, but nonetheless regarded as recoverable, doubling the amount of the overpayment.

I can't see anything in CPAG or the legislation that would indicate why this might be recoverable despite being official error. I'm proposng to appeal the decision, but I thought I'd see if anyone had any thoughts. The only thing I could think of is that because it's a mistake in the calculation of an overpayment rather than a benefit, they can revise it without falling fould of SS legislation. Is this correct?

The overpayment rules for HB/CTB are different to other SS benefits.

For HB/CTB, overpayments caused by a LA/DWP/HMRC error are still recoverable if EITHER of the following applies:

1) the clmt contributed to the mistake (case law means this is in the context of contributing to the CAUSE of the overpayment); OR.

2) the clmt could reasonably have been expected to realise s/he was being overpaid at either the time of the payment(s), OR at the time of any notice relating to the payment(s) - including notification letters.


I suspect that the LA will argue it is the latter provision your client falls foul of. It's also worth noting that the because the "get outs" are exceptions, the onus is on your client to show s/he falls within one of the exceptions.

Hope this helps.

It should be quite "easy" to show your client did not realise he was being overpaid due to the occ pension error. It assumes he would be aware of the HB regulations on such pensions...which is highly unlikely. Ask them to reconsider their decision and then appeal if it is unchanged. You should stand a fighting chance at appeal.

Also in my experience most HB O/P letterrs give a single global figure for net earnings. This often bears no relation to any figures shown on a payslip, especially if it is a monthly payslip and there are other deductions. Unless the details of the calculation of the earnings are set out somewhere, there is no way for the claimant to know what assumptions have been made.

Possibly they may argue that the client contributed to the mistake by not returning required information on time and thereby causing a revision to the overpayment calculation on the grounds of underlying entitlement.

Yes, I expect the LA are looking at this as one overpayment caused by two things, the failure of your client to provide evidence and their mistake with the pension.

The only comms decisions I am aware of on dual causation and LA error are CH/2794/2004 and CH/5485/2002 with the former being the closer, but still not very close, match for your case.

It might help you to have a read of these two decisions