Hi
I have a disabled student who is in receipt of IB and DLA. She has been inreceipt of Housing bnefit but now Housing Fraud have said she is overpaid Housing bnefit as she could have claimed a student loan but did not. They are treating her as having it under reg 64(3) of Housing bnefit regulations. Is there anyway to appeal this ( I don't think there is but one never knows)

seems to me you could argue 'official error' if the LA knew she was a student as the regulation says "shall be treated as pocessing a student loan".Therefore without any evidence that she couldn't access a student loan they should have treated her as pocessing one.

Obviously your client wouldn't have known she was being overpaid therefore theO/P is not recoverable(reg100(2))

A student loan can be taken into account as income if "he/she could acquire such a loan by taking reasonable steps to do so"

I am a bit surprised that this is being treated as a fraudulent overpayment.

It is a long time since I assessed a student claim, but actually I always thought that the assessor was expected to include the loan in the assessment in any case, this would ensure that the correct Benefit was paid, and then the onus would be on the claimant to show - if they did not have a loan why they had not taken the reasonable steps to acquire it.

Unless I am wrong about how student claims are assessed then the fact that the authority should include loan income as an assumed income - until they have information to the contrary then I would say this is actually a Local Authority error overpayment.

I have seen this happen a couple of times and the student has not only ended up with a v large OP but also found they are not entitled to HB - a really bad deal.

Thu 13-May-10 02:58 PM by stainsby

I agree that a student loan will be assessed as notional income if it is not applied for. This is manatory

I think its strongly arguable that this is an official error overpayment and what is more, its just as arguable that your client could not reasonably be expected to relise that she was being overpaid

The following assumes the OP was correct and in context and that the clmt doesn't have knowledge of the HB scheme.

On the face of it, it doesn't seem a likely candidate for "fraud". The only way this could be remotely possible would depend on the questions on the claim form and the answers to those questions.

So, onto the substantive issue.... Should the LA have known? Assuming the clmt properly disclosed details of the course and properly answered questions put to him/her, I concur with the other responses that the failure to take into account a loan was an error on the part of the LA error.

LAs cannot be expected to be experts in all matters beyond HB/CTB, but the "notional" student loan legislation is part of HB/CTB legislation and is unquestionably something that should be within the knowledge of HB/CTB assessors.

Once it is an error, it is only recoverable if the clmt contributed to the cause of the overpayment, or, could reasonably have been expected to realise s/he was being overpaid at either the time of payment OR at the time of any notice relating to the payment.

CH/4075/2003 may be highly relevant. In particular, look at paras 25 onwards. This CD is on its way to Rightsnet.

here's a link to CH/4075/2003.

thanks to kevin for sending it to us.

Might be a bit late but it is wirth noting that some students are not entitled to student funding at all: part timers, postgraduates (with some minor exceptions), students with prior degrees (ELQs). So being a student and having a notional income applied without further investigation is not a good idea. If the student cannot have the loan, there is obviously no notional income.