Has anyone got access to a copy or link to CH/1903/2009 - apparently deciding it is up to the local authority to demonstrate that a claimant would have realised that they had been overpaid in a official error case.

There are two statements included in CH/1903/2009 that could be regarded as contradictory. My firm belief is that the second, at para 15, is poorly expressed. Alternatively, it is simply wrong in law.

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@ para 13:

"Regulation 100(2) as set out above requires the tribunal to be satisfied that a particular claimant could not have reasonably been expected to realise that there was an overpayment (or an error that would necessarily lead to an overpayment). "


@ para 15:

For the reasons that I have indicated above I am not satisfied that the authority has demonstrated that at the time of receipt of payment or of any notice relating to a payment, this particular claimant could reasonably have been expected to realise that there was an overpayment.

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The LA plainly must establish there is an o/p in the first instance. However, it has long been established that HBR 100(2) is an exception and, as such, it is for the claimant to demonstrate s/he falls within the exception. There is a veritable shedload of CDs / UTDs where it has been conclusively held HBR 100(2) is an exception.

Kevin's point on burden of proof is well made.

However to say the two statements are contradictory does not seem quite so clear cut. He would be correct in an adversarial context - but as we all know tribunals are inquisitorial.

The inquisitorial concept is that the judge can - indeed should - conduct investigations into dispited matters with a view to discovering the truth.

If one reads HBR100(2) you can see it contains the words "reasonably", "expected" and "realise". These three words are matters of judgement and in complex disputed cases need carefully testing against the facts of the case.

When an LA rejects a claim that the exception should apply, the inquisitorial approach is to ask the LA to say why these matters of judgement went against the appellant.

All the second statement appears to do is to say that the LA has failed to establish convincing reasons why the exception was rejected which appears to be entirely within the spirit of inquisitorial.