Overpayment following claimant’s death

I have produced a standard letter that I use in such cases where I set out the arguments thus:

“Gallions Housing Association had no knowledge of Mrs X’s death until the council made its decision, but the evidence suggests that the overpayment may be in consequence of an official error either by the secretary of state or by the council itself.

The Social Security (Notification of Deaths) Regulations 1987 (SI 1987 No 250), places a duty on registrars in England and Wales and in Scotland to notify the Secretary of State of the particulars of death.  Regulation 111 of the Housing Benefit Regulations 2006 places a duty on the Secretary of State to forward that information to the local authority, and if that information was not timeously forwarded by the secretary of state in the present case, it is more than arguable that overpayments of housing benefit are therefore in consequence of an official error by the secretary of state. (see also CH/448/2009 DL v Liverpool City Council   [2009] UKUT 176 (AAC)

Furthermore, Regulation 5 of The Council Tax (Administration and Enforcement) Regulations 1992 SI 1992 No. 613 provides:
   
Information as to deaths
  5.—(1)  Within 7 days of the registration of the death of any person aged 18 or over, the registrar of births and deaths for the sub-district in which the death occurred shall, in accordance with paragraph (2), supply to any billing authority whose area includes all or part of, or falls within, that sub-district, the following particulars of the death—
(a) the name and surname of the deceased,
(b) the date of his death, and
(c) his usual address.

  (2)  The registrar shall supply the particulars specified in paragraph (1) either in writing or in a form in which they can be processed by a computer. 

There is therefore a duty on registrars to supply the billing authority in his district of with the particulars of deaths that occur. The billing authority for the Borough of ... is the same authority as the authority which administers housing and council tax benefit.

In this respect I draw attention to the words at paragraph 28-29 of CH/3586/2007, decided by Mr. Deputy Commissioner Whybrow QC as he then was

“First, I see no justification for construing the term relevant authority, which in its ordinary meaning is wide enough to embrace any part of the authority, in a way which confines it to one department within the authority. In particular, the statutory definition of “relevant authority” does not justify such a restriction: its purpose, in my opinion, is to limit the term to authorities administering HB, as distinct from authorities, like shire counties, who do have these functions. Further, if the intention of the secondary legislation had been to limit the term in the way suggested by the respondent, it would have been easy to do so expressly. In this regard, I note the contrast between the absence of a restrictive definition of the term relevant authority with the deliberately restrictive way in which the separate duty imposed on claimants to report change of circumstances by regulation 69 of the 2006 Regulations the legislation is drafted so as to require the claimant to report changes not to the authority generally, but to the designated office within the authority as defined in the regulations. I also draw support from the fact the Commissioner in CH/2321/2002 came to the same conclusion as to the ambit of the term relevant authority.”

  Second, the respondent’s contentions seem to me to wrongly conflate and confuse the separate questions on the one hand of the meaning of relevant authority in the context of official error in regulation 81(3) and on the other hand the question as to the nature and extent of the obligation of the claimant under regulation 69 to report changes of circumstances.  Relevant authority in the context of regulation 81 (3), properly construed as explained above, does not have the effect suggested by the respondent of changing the obligation on claimants to report change of circumstances only to the office designated by the authority for receiving claims for HB. That obligation remains and it would be a breach of that obligation to report changes of circumstances to a department of the authority which was not the designated office. Further, interpreting relevant authority in the way I have done, would not mean, as the respondent argues, that a claimant could rely axiomatically on official error where he has reported change of circumstances to, say, a parking attendant because a mistake in such circumstances could only be committed in the much more limited circumstances I have outlined in paragraph 26 above, and because it would remain necessary for the claimant to show that the overpayment was caused by any such mistake rather than by the failure to report the change of circumstances to the benefits service in breach of regulation 69 of the 2006 Regulations.

The evidence so far suggests that the overpayment of housing benefit is in consequence of an official error, and is therefore not recoverable in the circumstances”

CH/448/2009 is probably the reason why Councils are more reluctant to target the deceased claimant’s estate because Judge Mesher held at paragraph 15

“One problem is that such a decision cannot be made against the estate of a deceased claimant unless there is a duly constituted personal representative of the estate. That is for the reasons explained at length in decision R(IS) 6/01 (see in particular paragraphs 33 to 39). Here, the local authority did not in April 2008 actually know whether a personal representative of the claimant’s estate existed, either as an executor under a will or as an administrator under an intestacy. But that ignorance was the result of not having made any enquiries and the facts that a person had informed the DWP of the claimant’s death and that there were some references to executors suggested that there may well have been a duly constituted personal representative. There could therefore still have been a reference back to the local authority to start again as suggested in R(H) 6/06.”

Hello

I am dealing with an overpayment case following the death of the tenant where CH/448/2009 is quoted. Just wondering if anyone has any recent experience of successfully challanging these decisions

Thanks