Housing benefit are wishing to recover from landlord even though it has been explained that the tenant vacated without the landlord knowing. Could someone advise the relevant legislation and any other arguments I could include, as I thought the council could only recover from a landlord if they could have known they were being overpaid.
I have tried reading through previous posts and have become a bit confused. Is the HB legislation the same for pensioners and non pensioners as the tenant is below 60 years of age?
Thanks for this.

Mon 05-Oct-09 11:38 AM by Kevin D

Relevant legislation (working age) is HBR 100; then HBR 101 in conjunction with s.75(3)(a) & (b) of the SSAA 1992. Equivalent law applies to 60+.

Slightly oversimplfied it works like this (it is assumed the change in circs was dealt with as a supersession, complying with the aspect of the law immediately prior to the resultant, alleged, overpayment...).

Stage 1

HBR 100 sets out that the starting point that all overpayments are recoverable unless caused by "official error". Based on your post, I'm assuming there was no error by the LA/ DWP/ HMRC et al.

The next two stages deal with the person from whom a recoverable overpayment is recoverable.


Stage 2

HBR 101(1) / s.75(3)(a) sets out the circumstances in which overpaid HB is NOT recoverable from the recipient (e.g. a LL), where the recipient is not the clmt. To fall within this group, all hoops must be jumped through - they are cumulative (see CH/0784/2007 - para 10; the first para 10 ). The LA will probably argue the LL has failed one, or more, of the hoops (most likely paras 1(b) & (bb)). On that basis, the o/p is still recoverable from the LL. However....


Stage 3

HBR 101(2) / s.75(3)(b) then sets out the persons, other than the recipient, from whom overpaid HB is recoverable. Assuming the clmt failed to notify the LA of the change in circs, the overpayment is recoverable from the clmt as well as the LL.


So, at this point, based on the info available and a couple of assumptions:

1) the overpayment is (apparently) recoverable; and
2) the overpayment is recoverable from the LL; and
3) the overpayment is ALSO recoverable from the clmt.


But, that is not the end of it. Has the LA FULLY notified BOTH parties that the o/p is recoverable from BOTH the clmt AND the LL? If the LA has not done this, or has skipped straight to recovery without notifying BOTH parties it is recoverable FROM THEM in the first instance, the decision purportedly made by the LA has no force or effect (R(H) 6/06) - you should appeal IMMEDIATELY.

Hope the above helps rather than confuses further....!

Although I am always reluctant to disagree with Kevin’s analysis of any part of the regs, I think that there is an argument that where a claimant has not reported a change of circumstances (a material fact) then Reg 101(2)(a)(i) would bite and the claimant would be the subject of recovery instead of the landlord.

This appears to be confirmed in para 57 of R(H) 6/06

“The new regulation 101(2)(a)(i) and (ii) expressly provides that recovery of an overpayment will be sought from the specified person instead of the person to whom the overpayment was made”

I think this is the source of the original post. The argument being that the claimant has clearly failed to report a material fact but it could be argued that the landlord could not have failed to disclose a material fact he was not aware of.

I agree with Jeff's analysis IF the L/L has not failed to disclose. In my view, the actual wording of the legislation confirms this. HBR 101(2)(a) states:

------
"....in a case where an overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact (in either case, whether fraudulently or otherwise) by or on behalf of the claimant or any other person to whom housing benefit has been paid, the person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made;"
------

"If different" is my emphasis. If the LL failed to disclose a material fact, the LL is not "different" and remains in the frame along with the clmt.

As to whether there is a duty to disclose a material fact that is not known, isn't "B" still the current authority on this (notwithsatnding any HR challenge)?

Although I accept that B is good law, I do not think it is directly applicable to landlords in HB. B confirmed, amongst other things, that in order for their to be a failure to notify there must be a duty to notify.

The duty to notify in the HB regs is imposed by reg 88.

“Subject to paragraphs (3) and (6), if at any time between the making of a claim and a decision being made on it, or during the award of housing benefit, there is a change of circumstances which the claimant, or any person by whom or on whose behalf sums payable by way of housing benefit are receivable, might reasonably be expected to know might affect the claimant´s right to, the amount of or the receipt of housing benefit, that person shall be under a duty to notify that change of circumstances by giving notice to the designated office”

This regulation imposes this duty on the claimant or “any person by whom or on whose behalf sums payable by way of housing benefit are receivable”.

Does this include landlords? I belive this is very much arguable.

Assuming for the moment that it does include landlords, the duty is modified by the addition of the phrase “might reasonably be expected to know might affect the claimant´s right to, the amount of or the receipt of housing benefit,”

In other words, the landlord, if they have a duty at all, only has a duty to report changes that they “might reasonably be expected to know” will affect the claimant’s HB. This is different from the duty imposed in the case of B which had no such limitations.

B is definitely NOT authority for the propostion that there is a duty to disclose something that is not known, and by the way the general duty to report a change of circmnstances duty imposed on B had the same limitations.

The duty in B arose under Reg 32(1B) of the amended Social Security (Claims and Payments) Regs:

"(1B) Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom or on whose behalf sums by way of benefit are receivable shall notify the Secretary of State of any change of circumstances which he might reasonably be expected to know might affect–
(a) the continuance of entitlement to benefit; or
(b) the payment of the benefit,
as soon as reasonably practicable after the change occurs by giving notice of the change to the appropriate office–
(i) in writing or by telephone (unless the Secretary of State determines in
any particular case that notice must be in writing or may be given
otherwise than in writing or by telephone); or
(ii) in writing if in any class of case he requires written notice (unless he
determines in any particular case to accept notice given otherwise than
in writing)"

This is not substantially different to the duty in Reg 88 of the HB Regs.

It is well established that there is no duty on a person to disclose a change of circumstances that is not known (Sharples v Chief Adjudication Officer (reported as R(IS)7/94) Franklin v Chief Adjudication Officer (reported as R(IS)16/96).

In B, the Secreatary of State had given clear instructions to B to report if the children went into care or changed address. B did not report those changes, although she knew of them. In that respect, B was decided on its own peculaiar facts.

On the other hand , there can be no duty on a landlord to report the fact that a tenant has moved out if he does not know of that fact.




.

Thank you all very much for your invaluable advice and also to Derek who has so kindly sent me additional information to help with the appeal

One further question. In this case, the rent was paid to the agent, not the landlord. Housing benefit have only notifid the agent, not the landlord of the overpayment and are not willing to accept an appeal from the landlord unless the agent gives permission (although HB may not have realised the connection.) I don't know if the tenant was informed as they have vacated. Surely the landlord is a person affectd and the overpayment notice is not valid until they are informed?

Person affected is defiend in Rgaulation 3(1) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, in particular sub paragraphs (d) and (e)

(d) a person from whom the relevant authority determines that an overpayment is recoverable in accordance with Part XIII of the Housing Benefit Regulations or excess benefit is recoverable in accordance with Part XI of the Council Tax Benefit Regulations; or

(e) a landlord or agent acting on behalf of that landlord and that decision is made under regulation 93 (circumstances in which payment is to be made to a landlord) or 94 (circumstances in which payment may be made to a landlord) of the Housing Benefit Regulations.

In overpayment cases, its sub para (d) that is crucial. Who has the LA decided that the alleged overpayment is recoverable from? As always, have the LA actually made a proper decision on that question and issued the decision to all the parties (or to use an LA type phrase "targets for reovery" as is required following the Tribunal of Commissioners decision R(H)6/06. If no proper decision in the format required by R(H)6/06 has been made and notified, there is no overpayment that is recoverable from anyone.

In CH/3817/2004, Mr Commissioner Mesher as he then was held at para 14 that

"There is no express specification of persons who are not to be treated as persons affected and regulation 3(1) is not in the form of "a person is to be treated as a person affected ... only where". Thus, while regulation 3 conveniently puts the status of certain categories of person beyond argument, in my judgment it is still open to a person to argue that she is a person affected by a relevant decision for the purposes of paragraph 6(3) of Schedule 7 to the 2000 Act in the ordinary meaning to be given to that term."

You could argue that the landlord is a person affected by the decision in this case relying on CH/3817/2004 because the debt will be transferred to the landlord by the agent if the alleged overpayment is repaid by the agent.