Housing Benefit and any time revision requests

Wasn’t sure where to put this but as it’s about late revisions and appeals, here seems best place.

We’ve got an overpayment case where recoverable overpayment decision was made in 2017 but it appears that (1) the non-dependant whose alleged misreporting of earnings gave rise to the overpayment was actually renting another address in London during the relevant period and only stayed with client every other week when returning home and (2) the non-dep states that they disclosed earnings annually anyway. Client has significant memory problems and doesn’t really know what’s going on.

I think we can challenge the recoverable overpaymenr decision on official error grounds under reg.4(2)(a) of HB (D&A) Regs on basis the non-dep wasn’t a non-dep within the meaning of the law (provided they can evidence the other rented property and show it was their normal home) and also potentially that the fact of the level of earnings was disclosed anyway but wasn’t properly taken into account. And if the any time revision request is refused, that opens up normal appeal rights.

Any thoughts as to whether this sounds like a possible challenge gratefully recieved as ever. Thanks :-)

Refusal of the revision request won’t refresh appeal rights - the procedure is different from the DWP “mandatory recon” process and the loophole opened up by the UT decision on mandatory recons isn’t available in HB cases.

In HB, the time limit to appeal runs from the later of:

- the date of the original decision, or
- the date on which the Council rejected an in-time revision application (including an application admitted >1m but < 13m after the decision and then rejected in substance).

With overpayments it’s a penny to a quid there will be a flaw in the original decision notice that invalidates it and means the time limit hasn’t even started yet.  The notice must include enough information for the reader to understand:

- why there is an overpayment per se
- why it is recoverable
- why it is recoverable from a person or persons
- how it was calculated and the weeks it covers

LAs often don’t properly explain the why and from whom bit.

Thanks Peter. Just so I am clear, you’re advising we should make any time revision request on the recoverable overpayment decision, which if accepted, means we ask for new overpayment decison with new appeal rights, if the LA insist there is an overpayment?

As there seems to be an argument as to whether the cousin was a non-dependant, I was thinking we would ask for any time revision of the entitlement decision itself as it’s not 100% clear non-dep deductions should have been made in the first place.

You can ask for any time revision on the official error ground, but if the Council rejects the application you cannot appeal to Tribunal.  The alternative plan then is to look for something wrong with the original 2017 decision notice and argue that it should be reissued with fresh appeal rights.

If the Council agrees that the overpayment has been overestimated, but does not accept any official error on its part, there is another argument, which I think stands up but might be regarded as a bit obscure by the Council.  The adjudication regime, including revision and its attendant time limits, applies to “relevant decisions” as defined in para 1 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000.  The definition does not include overpayments.  There was an amendment to fix this omission in the Welfare Reform Act 2007 but it has never been brought into force.  That leaves overpayments occupying a unique position in the decision making framework:

- there is a right of appeal: para 6 of Schedule 7 carefully provides for a right of appeal against both a “relevant decision” and a “determination” that an overpayment is recoverable from a person.  See R(H) 3/04 which comments on this distinction between decisions and determinations.  R(H) 3/04 is obsolete on its central theme of landlords’ appeal rights, but the observations about the strange status of overpayment “determinations” are still valid I think
- but nothing else in Schedule 7 about “relevant decisions” has any bearing on overpayments, which means an overpayment can be adjusted in the claimant’s favour at any time.  I think the Interpretation Act allows a public authority to exercise any function at any time as it sees fit in the absence of provision to the contrary.

Nice one Peter, thanks for that, much appreciated. The LA in this case have advised the adviser that they should consider “late appeal” (even though that appears to me to be completely out of time), so they do seem receptive (at this stage) to changing the decision, fingers crossed.