Calculating HB overpayment in accordance with reg 103

Help!  I am dealing with a HB overpayment caused by undeclared capital over a period of 6 years.  My client was also claiming Income Support, and the capital initially came to light through a DWP investigation.  The overpaid IS has already been calculated ( I assume, though I haven’t redone the calculations) on the basis of diminishing capital (SS(PAOR) reg 14).  When it comes to a calculation of the overpayment Housing Benefit, surely the starting point for the amount of capital available for each 13 week period should be that as calculated for IS recovery purposes?  The claimant would have had to reduce their capital and use what was paid out in IS for their day to day needs for each 13 week period as well as having to reduce it to pay for rent.

Hi Ruth,

That would seem like a fair view of what the law should be but your problem is that Regulation 103 only allows for the offset of Housing Benefit entitlement and not all overpaid benefit entitlement. I don’t think you can get around that, although I would be interested to see other peoples opinions on this.

Best regards

Chris

Unfortunately not.  There is a contrast here with the calculation of diminishing notional capital under Reg 50, which takes account of the amount of other means tested benefit “lost”.  But the HB overpayment calculation under Reg 103 only reduces the capital by the cumulative amount of overpaid HB.

See para 12 of CH/0314/2007 which confirmed that not even HB and CTB were combined for diminution purposes, never mind DWP benefits.

Thanks both.  That’s an amazingly rapid service!  Actually on examination I am not convinced that the DWP ever calculated diminishing capital on the IS - if so it would have reached a point of entitlement to some IS (and hence no HB overpayment whatsoever) before the end of the OP period.  But that is a different challenge, and the IS decision is a 2019 decision so on the face of it outside time for appeal.

I don’t know about the claimant being passported to HB as a result of diminished capital for the purposes of IS overpayment calculation - in real life the claimant is not entitled to IS for any period in which they had capital above the limit, the diminution is just for the purpose of calculating the o/p.

But it is very likely that the parallel HB diminution would probably get to a point where the overpayment is nil either before or at roughly the same time as the IS o/p calculation results in some notional IS entitlement.

Yes. but at the point just below £16,000 where there would have been some entitlement to IS, then there would have been full entitlement to HB, so no overpayment at all from that time onwards?  (In fact there are a few weeks where there is partial entitlement to IS, and so no HB overpayment, but this is because the actual capital dipped below £16,000, later rising). It is probably too late to pursue the calculation of the IS overpayment at this point, but I have a nagging feeling it would have helped considerably (and also, I am just curious as to why it didn’t happen.)

Oh, I see now I missed your point about the theoretical entitlement to partial IS once a diminishing capital calculation is done not being helpful to HB.  However,  when the DWP did their recalculation on the few weeks in the middle when actual capital fell below £16,000 and therefore calculated a partial entitlement to IS, the Local Authority decided that client would have been entitled to full HB on the basis that she would have been entitled to IS. So I suppose their thinking went “There is in existence a decision that she was entitled to partial HB from June 2016 to March 2017” and this is different from saying “She would have been entitled to partial IS on the basis of a diminishing capital calc” as this is not a decision.  Have I got this right?

Yes, exactly (assuming you meant partial entitlement to IS, not HB in the first proposition)

Yes, you are right, I meant to say “There is a decision in which she was entitled to partial IS”.  Thanks for all your help with this case - it’s been totally new ground for me.