Hi all,

If anyone can lay their hands on R v Kensington and Chelsea RBC ex p Brandt <1995> 28 HLR 528 QBD (Dyson J), then a copy would be much appreciated.

Many thanks.

Martin.

post fax number and I'll send a copy

cheers chris ... lasa fax is 020 7247 4725

faxed

Many thanks Chris- judgment received here.

I wanted it because it is referred to in the analysis to Reg 102 of the HB Regs 2006 (in Findlay etc) as precluding a local authority from charging interest on HB overpayments.

Having read the decision I note that Dyson J does touch on this but that this is not the ratio of his decision. I also note that he comments that interest could be obtained by an LA were they to seek to enforce liability through the courts (which we know from other cases).

The issue in the case I am looking at is this:

1. Approx 2002 LA make decision that about £60k is recoverable.
2. Claimant appealed and after losing first time round case set aside and new hearing in 2007. That decision found the claimant only overpaid £20k (ie appeal allowed in part).
3. LA have written to claimant asking for repayment of £27k- includes £7k of interest calculated from 2002.....

My understanding (you will see how rough it is) is as follows:

1. ex p Brandt is at least persuasive on the fact that an LA cannot add interest to a HB o/p.

2. Were the LA to seek to enforce recovery through the Courts then they would be entitled to claim interest but only in the normal way (ie only for the period between the date on which they lodge their claim with the Court and the date of judgment--- am I right in thinking this is the normal way in which interest can be charged?--- money advice was never my strong point).

3. Even if not right on 2 above then there is a strong argument that the debt did not exist until the Tribunal decision was given as it was not determined until that date.

Does that seem right?

You're right on 2 - not so sure about 3. If someone is overpaid benefit on 1/1/2003, arguably they "owe" that money from that date, despite the fact that it might not be until some years later that a tribunal determines the issue. Bit of a metaphysical issue, though, given you're right on 2.

Am I right that the date from which interest can be charged is the date they file their claim with the court? Not sure about that bit.....

Mon 10-Dec-07 12:16 PM by past caring 1

My money advice knowledge could be better, too. Just checked with MP - he reckons interest can be claimed* from the date that claimant writes to the debtor demanding payment - ie this would be before lodging claim with court, but no sooner than the tribunal decision.* The court has to agree to the charging of interest - it isn't automatic, and he reckons there'd be a decent defense to a claim of interest from the date of overpayment - ie debtor did not realise debt was owed, not established debt was owed etc.

I would argue that following para 6 of R(SB)5/91, the debt cannot exist until the issue is fianlly determined. Mr Commissioner Rice wrote:

The same question which came before the tribunal appears to have been ventilated in an earlier case CSB/1158/1982, where at paragraph 9 the learned Commissioner stated as follows:
“9 . . . . in my judgment the Limitation Act has no relevance. Recovery under section 20 (which is for the Secretary of State alone) only arises once the adjudicating authorities have determined there is a recoverable amount and have determined what it is. That is the sole jurisdiction of the adjudicating authorities. They are not concerned with whether money can or should be recovered, see paragraph 4 of R(SB) 44/83.”
The Commissioner then went on to point out that time began to run within section 9(1) only after the appellate procedure had been exhausted:
“Accordingly until adjudication is complete the Secretary of State has no right to recover. It is only from then that the Limitation Act period will apply as only then does the Secretary of State’s right of action accrue. To accept that notification of the date of the adjudication officer’s decision as the relevant date will mean that the Secretary of State was entitled as of that moment to recover notwithstanding that there was an appeal in progress. It would not I think be the intention of Parliament to provide for appeals against an initial determination if such were the case . . .”

Interest on the debt, so called judicial interest is a matter for the discretion of the court. I would argue that to claim judicial intersest on an HB overpayment would be an abuse of process

I dealt with a case like this where the Court had awarded interest, but I managed to have the judgement set aside because defects in the Council's notices invalidated the process and so the Court had no jurisdiction to issue the judgement. I also argued that following Brandt, there was no right to judicial interest.

Sorry I didnt create any precendent there, but I would say that in my experience, LA legal departments are not up on HB law. The LA in question used to farm out its Commissioner work to their legal department but now HB staff do it themselves because they are better at it

Thanks to chris orr, R v Kensington and Chelsea RBC <1996> is now available on rightsnet -

http://www.rightsnet.org.uk/pdfs/R_v_Kensington_and_Chelsea_1996.pdf