Recovery of overpaid HB from landlord when tenant vacates

This response assumes the o/p has not been caused by an error on the part of the LA/DWP et al.

The LA’s reference to “...subject to para 1…” is notably incomplete (selectively so?). 

HB(PC)R 82(2)(a) actually says “...subject to paragraph (1) and where sub-paragraph (b) or (c) does not apply, the overpayment is recoverable from the claimant as well as the person to whom the payment was made, if different;”  {bold is my emphasis}.

Sub-para (b) says:

“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 by or on behalf of any person to whom the payment was made, the overpayment is only recoverable from any person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made;”.

Based on the info given, the o/p arose in consequence of a failure to disclose a material fact.  That means sub-para (b) applies.  Sub-para (a) only applies if (b) doesn’t so (a) is dispatched.

The LA may then argue the LL also failed to disclose.  However, it isn’t possible to disclose something that isn’t known.  Taking a leaf from Mr Stainsby, it may be worth searching the Rightsnet forums for posts on “constructive knowledge”.

In my view, para (1) of HB(PC)R 82 isn’t engaged because para (2) has directed that the “target” is “...only recoverable from any person who failed to disclose…”.  The LL could not disclose because there was no knowledge of the material fact.  That only leaves the clmt.

I would also argue that reliance on 82(1) in isolation would render 82(2)(b) to be of no effect and, therefore, 82(2)(b) must “trump” para (1).

As an aside, in order to fall within para 1, ALL of the sub-paras must be cumulatively satisfied for it to apply.

Thanks Kevin - I was stumbling to the same conclusion but not sure when I would have got there.

*bump*

Purely by chance, I have stumbled upon a decision by the Upper Tribunal on what appears to be a made-to-measure fit for this scenario.  In CH/2630/2010, the UTJ concludes that if HBR 101(2)(b) is engaged, para (1) doesn’t necessarily need to be satisfied.

Somewhat spookily, the LA made arguments which appear rather similar to your case.  The UTD is attached to this post.

I am surprised that the case was not thrown out much earlier in CH/2630/2010 as the LA had clearly not made a proper recoverability decision as was required following the decision of the Tribunal of Commissioners in R(H)6/06

Just like buses….

CH/1876/2010 follows the approach taken in CH/2630/2010 and although citing an earler version of HBR 101, CH/2064/2009 also confirms that what is NOW HBR 101(2)(b) overrides HBR 101(1).

On the matter of possible oversights, there is arguably one such occurrence in CH/2064/2009 @ para 19 - did the Judge overlook HBR 80?  Small point and doesn’t affect the main issue.