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Forum Home  →  Discussion  →  Housing costs  →  Thread

Review of discretionary decision to not to recover from landlord

Jacky Philipson
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Housing and Benefits worker Manchester Mental Health Assertive Outreach Team

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Total Posts: 48

Joined: 28 July 2015

My client has severe and enduring mental health needs. He moved out of a flat in a supported housing project into a flat provided by a social housing landlord on 29/1/16 who notified the Benefits Unit of the change of circumstances on the same day. He was not required to give his previous landlord a notice period before moving out and therefore his liability for rent at his previous address ceased on the day that he moved out.

The Benefits Unit have confirmed notification of the change of circs on 29/1/16 but did not process the change until February by which time an overpayment of benefit had been paid to the supported housing project. The overpayment was subsequently recovered in full by 29/3/16 from my client’s housing benefit award at his new address. This has resulted in outstanding rent arrears of £110 and although he has not been requested to clear these arrears he is becomingly increasingly anxious about them and his own perceived worries in respect of the effect they may have on the security of his tenancy are affecting his mental health. Neither I or his social worker feel comfortable about suggesting that he clears the arrears himself whether he has sufficient income or not since he did not cause the overpayment.

I have asked the Benefits Unit to make a discretionary decision to refund my client’s current housing provider and alternatively recover the overpayment from the supported housing project by offsetting it against the rent of another tenant. I have seen the same being done in a similar situation with another client who moved out of a different supported housing project although this seemed to be done automatically at the time of moving.  However in this case the Benefits Unit have not changed the earlier decision because the overpayment was £110.23 i.e. low (cl’s income is £264 - £79 disregarded) and the overpayment has now been recovered in full.

We are out of time to appeal the recovery decision. I understand that the landlord and my client are jointly and severally liable and that although the hb entitlement was rightfully my client’s, a tribunal would not have had a duty to find whether it was fair to recover from my client, but at least there would have been a right of appeal.

Can anyone suggest a way of resolving this situation? His social worker has made some attempts already to recover the overpaid amount from the previous supported housing project but has not got very far and I can certainly chase this up but I wondered if the decision has a right to a review in the same way that a discretionary housing payment decision would have - the response that I have received does not refer to any further stage of decision making.

Thanks for any advice

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

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It looks like the Council must have decided the overpayment was no-one’s fault: they made a final payment of HB to the old landlord before they processed the notification that the claimant had left, but not so long after that you could call it an official error.  Just one of those things when events happen quickly.  In those circumstances the overpayment is recoverable from both the person to whom it was paid and the claimant.

So what can the claimant do now?  It is very easy indeed for the Council to make mistakes in the notification process with so called “tripartite” overpayment decisions.  They should have sent notices to both the claimant and landlord notifying each of them that they considered the overpayment to be recoverable from both of them, and why.  Penny to a quid they did not.  Very common defects in o/p notices include:

- not notifying both parties
- not notifying the same thing to both parties (eg only telling the claimant it was recoverable from him and not mentioning that it was recoverable from the landlord as well)
- asserting that the overpayment is recoverable but not saying why

If you can find something to attack in the decision notice, that re-opens the option of an appeal because the time limit only runs from when the claimant is notified properly.  The ground for appeal would be that the cause of the overpayment was official error, in which case it is either not recoverable at all or it is only recoverable from the landlord who had visibility of the continuing payment.  Tribunal would have to decide exactly why it came about that further payment(s) was/were made and whether that was an error or just unlucky.

First step is to get your hands on a copy of the notice issued to the claimant in February2016 if you can.

Jacky Philipson
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Housing and Benefits worker Manchester Mental Health Assertive Outreach Team

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Total Posts: 48

Joined: 28 July 2015

Hi - thanks for your reply. I doubt that my client still has the decision letter but will check this - possibly could ask for a duplicate from the Benefits Unit.

If however it isn’t classed as an official error because there was a reasonable delay in responding to the change of circumstance will this get him much further since the Tribunal can’t otherwise instruct the Benefits Unit to recover from either the landlord or the claimant if both are jointly and severally liable.

Is there any scope for asking for a review of the discretionary decision just received not to change the earlier decision to seek recovery from the landlord in the same way that an unfavourable DHP decision can be looked at again even though it similarly doesn’t have a right of appeal?

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

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No harm in asking, but you are right that the Tribunal cannot tell them how to exercise their discretion.  If after all avenues are exhausted the conclusion is no official error, it comes down to discretion on the Council’s part whom they go after.

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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I’d say there were potential grounds for a late appeal regardless of whether correct notice has been given. However, I’ve had some small successes arguing that recovering from the tenant in such circumstances directly contradicts LA anti-poverty policies, where they exist. Even the vaguest of wording in a glossy brochure can assist. A councillor with a commitment to said policies can also assist.