The extent to which HB reg. 104 might be “freestanding”?

That’s it really.

Looking at a HB overpayment decision 7/7/2020 for period July 2019 - June 2020. Client did nothing about it at the time (non-English speaker, very limited/no advice available to her) and has only now sought advice because the overpayment is being recovered from her UC award.

I don’t know yet whether the LA actually issued the associated revising decisions (and that might provide a way in/allow me to argue that time has not started to run) but it’s already clear on the facts that on a proper application of reg. 104 there is no overpayment and almost certainly quite a large underpayment (the award was made on basis of income of tax credits plus the partner’s earnings, he left just before the start of the overpayment period, client did not disclose that fact, he got a much more highly paid job after leaving, the overpayment is calculated on the assumption of an income of tax credits plus his much higher earnings, whereas the reality was her income was tax credits only).

So can we simply say “reg. 104 says you must calculate the overpayment in this way, it hasn’t been, here’s the information to enable you to calculate it correctly, please do so”? And JR if this is refused….

Yes, it is pretty freestanding.

Start by looking carefully at Schedule 7 to the CSP&SS; Act 2000, in particular the definition of “relevant decision” in para 1, which does not mention overpayments; and the right of appeal in para 6, which carefully distinguishes between relevant decisions on the one hand, and cases where an overpayment is “determined” on the other.  Paras 3 and 4 provide for relevant decisions to be revised and superseded, on prescribed grounds and within prescribed time limits - but this does not seem to affect overpayment “determinations”.

The UT picks up on this from time to time: see for example R(H) 3/04 (which was overturned by R(H) 6/06 on its main theme of a landlord’s right of appeal, but remains good law on the peculiar status of overpayment “determinations”), and the more recent [2016] UKUT 115 (AAC).

There is an amendment of Schedule 7 in Schedule 5 to the WRA 2007 - it adds overpayments as a third limb to the definition of “relevant decision”.  But it has never been brought into force and I don’t suppose it ever will be.

The way that leaves things is:

- overpayments are still not “relevant decisions”
- there is a right of appeal against an overpayment
- all other mechanisms and constraints affecting relevant decisions do not apply to overpayments, especially revision and supersession with their attendant time limits and prescribed grounds
- the Localism Act and the Interpretation Act both give local authorities the power to do whatever they need to do from time to time, unless they are prevented by statute from doing so
- therefore an overpayment can be adjusted at any time relying on Reg 104: there is nothing to say it can’t be.

Cheers - much appreciated as ever. I did have something to that effect lodged vaguely in the back of my head, particularly the Schedule 7, Schedule 5 to the WRA 2007 stuff, but brain power fully used up on other matters atm.