× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Housing costs  →  Thread

HB reg. 104/underlying entitlement - time-limit for applying?

past caring
forum member

Welfare Rights Adviser - Southwark Law Centre, Peckham

Send message

Total Posts: 1116

Joined: 25 February 2014

I am certain (but could also be losing my marbles) there was a fairly lengthy discussion on here several years back that concluded that reg. 104 was effectively ‘free standing’ - and so could/should be applied to reduce the amount of a recoverable overpayment even in circumstances where the evidence that would allow calculation of any underlying entitlement was supplied well after the time limits for revision and apppeal had expired (and where there was no official error that could be argued to permit an any time revision).

Am I wrong?

shawn mach
Administrator

rightsnet.org.uk

Send message

Total Posts: 3773

Joined: 14 April 2010

past caring
forum member

Welfare Rights Adviser - Southwark Law Centre, Peckham

Send message

Total Posts: 1116

Joined: 25 February 2014

Unfortunately not. First is primarily about reg. 103 and diminution of capital in calcualtion of an overpayment. Second is about an allegation of fraud not negating the duty to apply reg. 104….

HB Anorak
forum member

Benefits consultant/trainer - hbanorak.co.uk, East London

Send message

Total Posts: 2895

Joined: 12 March 2013

The time limits within which decisions may be revised in the claimant’s favour apply to “relevant decisions” as defined in para 1 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 (HB was two years behind other benefits in adopting this adjudication framework, that’s why it is somewhere else and not in the SSA 1998).

Curiously, the determination of a recoverable overpayment is not included in that definition.  There was an amendment in Schedule 5 to the Welfare Reform Act 2007 that would have added overpayments to the definition, but it was never brought into force.  The UT (and Commissioners before them) do remark on this from time to time.

I believe the effect is that there is no time limit for the recalculation of an overpayment in the claimant’s favour: if evidence supporting underlying entitlement comes to light at any time there is nothing to stop the Council from making an adjustment, except perhaps something in the Limitation Act 1980 but I cannot see anything in that Act that prevents a debt from being reduced as opposed to recovered.  Even if the Limitation Act did cover it (say s9, perhaps) there would still be six years for the u/e to come to light.

shawn mach
Administrator

rightsnet.org.uk

Send message

Total Posts: 3773

Joined: 14 April 2010

past caring - 08 June 2017 03:54 PM

Unfortunately not ....

Might it have been from the old forum (pre June 2010)? .... here’s some results from there:

https://www.google.co.uk/search?q=“underlying+entitlement”+“104”+site:www.rightsnet.org.uk/forum-archive

 

past caring
forum member

Welfare Rights Adviser - Southwark Law Centre, Peckham

Send message

Total Posts: 1116

Joined: 25 February 2014

Cheers Shawn - but HB Anorak has nailed it. Thanks to both of you.