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CJSA/1332/2001 - withdrawing from an award of benefit

 

Peter Turville
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I cannot locate a copy of this decision at all the usual sources - does anyone have a copy / link (it is referred to in CH/2008/2011 and some other decisions on the same issue - and a 1st tier tribunal decision in our clients case!).

     
Stainsby
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Here’s a copy of CJSA/1332/2001 (I represented in CH/2008/2011 by the way)

      [ Edited: 8 Feb 2018 at 05:20 pm by Stainsby ]

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Peter Turville
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Thanks Stainsby

I have a case where the LA delayed acting on the claimants request to withdraw from her award and have recovered the ‘ongoing payment’ as an “overpayment”.

     
Stainsby
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Clearly an official error overpayment.

The question is then whether the claimant could reasonably be expected to realise (s)he was being overpaid

That could be a tall order for your client r given the nature of the change of circumstances, but if the HB was paid direct to the landlord it is arguable that (s)he may not be expected to realise she was overpaid unless the LA issued advice notes to your client with each payment, or the landlord had similarly acknowledged receipt of HB to your client

     
Martin Williams
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Stainsby - 12 February 2018 01:51 PM

Clearly an official error overpayment.

The question is then whether the claimant could reasonably be expected to realise (s)he was being overpaid

That could be a tall order for your client r given the nature of the change of circumstances, but if the HB was paid direct to the landlord it is arguable that (s)he may not be expected to realise she was overpaid unless the LA issued advice notes to your client with each payment, or the landlord had similarly acknowledged receipt of HB to your client

For the claimant to realise that this was (not might be) an overpayment they would need to understand that as a matter of law a request to withdraw an award took effect from when it was received and not when it was actioned. I am not even clear that this is definitely the case myself so I struggle to see how a claimant could have that level of knowledge.

     
Peter Turville
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Martin Williams - 13 February 2018 01:21 PM
Stainsby - 12 February 2018 01:51 PM

Clearly an official error overpayment.

The question is then whether the claimant could reasonably be expected to realise (s)he was being overpaid

That could be a tall order for your client r given the nature of the change of circumstances, but if the HB was paid direct to the landlord it is arguable that (s)he may not be expected to realise she was overpaid unless the LA issued advice notes to your client with each payment, or the landlord had similarly acknowledged receipt of HB to your client

For the claimant to realise that this was (not might be) an overpayment they would need to understand that as a matter of law a request to withdraw an award took effect from when it was received and not when it was actioned. I am not even clear that this is definitely the case myself so I struggle to see how a claimant could have that level of knowledge.

Unfortunately the tribunal did not allow the appeal based on this and related arguments (it was a rent rebate case so HB credited direct to rent account). I am awaiting a SOR.

The case law clearly (in the absence of a statutory provision) allows for withdrawing from an award to be treated as a supersession for a change of circumstances thus allowing for the ‘termination’ of the award of HB. However HB Reg 99 (meaning of “overpayment”) also requires that there was no entitlemement under the HB regulations in addition to the requirement for a revision or supersession.

There was no argument by the LA that the claimant no longer had an actual entitlement to HB (client had just had enough of the administative hassle of reporting frequent changes in ND’s variable earnings for the sake of a few £s HB).

In this context the legal argument must be whether a supersession that allows for the ‘termination’ of an award (in the absence of a statutory provision for withdrawing) also mean there is no entitlement under the Regs such that any continuing payment of HB is an “overpayment”. I cannot find any case law that addresses these aspects of withdrawing from an award and a resulting overpayment.

LA have refused to exercise their discretion not to recover despite accepting the o/p occured due to their delay. Oh and its i.r.o. a sum of £89.00! (still a lot of money to my client).

     
Stainsby
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The case law,  suggests that the notice from the claimant asking for the award to be withdrawn amounts to a change of circumstances which provides the ground for supersession.

The supersession of course can take effect from the week after it was received by the Authority.

The reason I say it might be a tall order for the claimant to argue that he could not reasonably be expected to realise he was overpaid, is that it is strongly arguable given the nature of his request, that he would be expected to realise that he was not entitled to the benefit following that request.

The question then arises is whether the claimant would then know that (wrongful) payments continued following the request.

Take a look at R(H)1/02 because that was a rent rebate case where the Commissioner considered the date on which the claimant could reasonably be expected to realise that she was being overpaid

      [ Edited: 14 Feb 2018 at 02:49 pm by Stainsby ]

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HB Anorak
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Peter Turville - 13 February 2018 02:06 PM

The case law clearly (in the absence of a statutory provision) allows for withdrawing from an award to be treated as a supersession for a change of circumstances thus allowing for the ‘termination’ of the award of HB. However HB Reg 99 (meaning of “overpayment”) also requires that there was no entitlemement under the HB regulations in addition to the requirement for a revision or supersession.

There was no argument by the LA that the claimant no longer had an actual entitlement to HB (client had just had enough of the administative hassle of reporting frequent changes in ND’s variable earnings for the sake of a few £s HB).

In this context the legal argument must be whether a supersession that allows for the ‘termination’ of an award (in the absence of a statutory provision for withdrawing) also mean there is no entitlement under the Regs such that any continuing payment of HB is an “overpayment”. I cannot find any case law that addresses these aspects of withdrawing from an award and a resulting overpayment.

LA have refused to exercise their discretion not to recover despite accepting the o/p occured due to their delay. Oh and its i.r.o. a sum of £89.00! (still a lot of money to my client).

I think you are definitely onto something with this.  I am sure it will get permission to appeal: maybe not at the first bite of the cherry, but a UT judge is going to look at that and think “Mmmm, tasty.  Makes a change from the usual ‘inadequate reasons’ dross.  I’m having this one”

     
Peter Turville
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HB Anorak - 15 February 2018 11:44 AM


I think you are definitely onto something with this.  I am sure it will get permission to appeal: maybe not at the first bite of the cherry, but a UT judge is going to look at that and think “Mmmm, tasty.  Makes a change from the usual ‘inadequate reasons’ dross.  I’m having this one”

Perhaps so tasty I can even select the UT judge of my choice in a TV talent show kind of way! Also time I had a UT case that’s not the usual ‘inadiquate reasons’ too!! However the decision was made by a district judge so the SOR may cover all bases.

      [ Edited: 15 Feb 2018 at 04:25 pm by Peter Turville ]
Stainsby
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I had overlooked HB Anorak’s basic point about the definition of an overpayment and I reckon that one is a winner

Notwithstanding that crucial point, I have often come up against Councils who cite CH/0609/2004 (at [20] ) in overpayment cases:

“20. It is possible that information that is later available to the claimant may affect what the claimant could reasonably have been expected to realise. What happens if the claimant reports a change of circumstances to the local authority, but hears nothing in reply? I cannot imagine any circumstances in which the claimant could reasonably conclude from silence that benefit was being correctly paid. In the absence of confirmation that there was no change in entitlement, there are always other possibilities that at least require investigation. One is that the local authority did not receive the claimant’s notification. Another is that it has been mislaid or overlooked. A third is that the local authority has not yet got round to dealing with it.”

Its easy to counter that argument simply by saying that the decision maker has focussed on obiter remarks made by the Commissioner in CH/0609/2004 at [ 20]  and elevated them into a statement of general principle.  The general principles are in fact outlined at [6 ]

“6. In a number of decisions, I have said that tribunals should take a three-stage approach to the application of these provisions:

First, the tribunal must direct itself correctly on the law.
Second, the tribunal must identify the information that the claimant had about the housing benefit and council tax benefit schemes.
Third, the tribunal must determine what the claimant could reasonably have been expected to realise from that information.”

As HB Anorak says, the first matter the Tribunal must direct itself is the definition of an overpayment.  The Council’s case might fall at that point.

If the Council’s case has not already fallen, we then go on to the second and third parts of the approach outlined by the then Mr Commisioner Jacobs.

The other argument here is the supersession issue.  The claimant’s request for the award to be withdrawn can be seen as providing the grounds to supersede.  The past case law suggests that this should be treated as a change of circumstances which normally takes effect from the week following that change.

I think that the past authorities are maybe stretching the language a bit in order to provide the graounds for supersession , but in thse sorts of cases, it needs to be remembered that the language of the legislation if taken literally is to an extent the language of discretion .

Regulation 7(2) of the Decisions and Appeals Regulations provides that an authority may (not shall) supersede a decisision where there has been a change of circumstances, so it is arguable in the present case that the authority could have chosen to supersede only from the date it made the superseding decision

In Wood v SSWP (reported as R(DLA)1/03) Lady Justice Arden concurred with the ratio of the Court’s Judgement but dissented in her reasoning.

Arden LJ held (at [62])

“In my judgment, on its true interpretation regulation 6 creates threshold criteria for consideration of an application for supersession. It sets out the conditions which must be fulfilled before a decision is made under section 10. Thus the Secretary of State can only consider whether to supersede an earlier benefit decision if the circumstances come within paragraph (2)(a) to (g) of regulation 6. Thus, under paragraph (2)(a)(i) of regulation 6, the decision by the Secretary of State to initiate a fresh decision under section 10, and any application for the purpose of the Secretary of State making any such decision, must be on the basis that there has been a relevant change of circumstances since the original decision. The words “on the basis that” mean “on the grounds that”, and qualify “initiative” and “application”. They denote the state of mind of the person triggering the section 10 process as manifested by their initiative or application. Thus, to qualify under regulation 6(2)(a), the change of circumstances, actual or anticipated, must be the bona fide ground for initiating that process. Accordingly, an application which is transparently not upon the ground of a relevant change of circumstances, or is otherwise misconceived for the purpose of regulations 1 and 46 of the 1999 Regulations, is not one which meets the conditions in paragraph (2) of regulation 6. In those circumstances, there is no obligation on the Secretary of State to proceed to make a decision under section 10, and no decision lies against his refusal to do so. Indeed, the court may strike out the application under regulation 46”

Arden LJ reasons that the change of circumstances may set the threshold criteria for supersession, but of itself does not necessarily determine the outcome.

It is arguable thatArden LJ’s dissenting reasoning in Wood should be followed in cases where there has been a request for an award to be withdrawn.

.

      [ Edited: 16 Feb 2018 at 10:53 am by Stainsby ]