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HC Overpayment

 

Shell Dent
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Tenancy Income Services, Housing Services, Derwentside Homes Ltd

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I am hoping for inspiration and assistance .....

I have logged an appeal against the recovery of HC from us as the APA was paid to us. The customer moved in the AP and we have received the invoice.

I understand that the regs state that the OP can be recovered from client AND landlord ... However, I am kind of loathed to pay this as it is a change that previously we could have argued is unreasonable for us to know ....

I appreciate that UC is different but surely the intention is not to hedge DWP’s bets to recover - especially when they can recover direct from the customer from their next AP payment ....

I have been asked by the Tribunal Service to outline the legal basis on which I am basing my appeal .... I am currently considering withdrawing!!! Which seems like DWP have won!!!

Thanks in advance for assistance

     
HB Anorak
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I don’t think you have any chance of getting this one admitted.  The Tribunal’s jurisdiction is limited to the “could”, it cannot touch the “should”.  Where it is established that an overpayment is recoverable in principle from two or more persons, there is no right of appeal against the choices DWP makes about whether, how and from whom to go about pursuing recovery.  The only issue for appeal is whether they can at all - you acknowledge in your case that they can.

If you want legal references for this, there are so many it is difficult to know where to start.  B and R(H) 6/06 spring to mind

     
Elliot Kent
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I’m just wondering about the logistics of this.

So the guy moves out of your accommodation and into some other accommodation mid way through an AP and you still get the APA for that AP.

Are they saying that there is an overpayment of the difference between your rent and the (cheaper?) rent in the new property? Or are they saying that the whole payment is recoverable from you?

     
Shell Dent
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We are being invoiced for the full APA - regardless as to when customer moved

     
ClairemHodgson
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Shell Dent - 11 October 2018 08:23 AM

We are being invoiced for the full APA - regardless as to when customer moved

that’s just bizarre.

can’t blame people for not wanting to rent to people on UC if they’re going to have to give back rent that was in fact payable if person moves during an assessment period.

     
HB Anorak
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There is a long standing approach in DWP that any award of HB or, now, UC housing element is “for” a particular dwelling.  For example HB Reg 104A only makes sense if you accept that premise. It means HB/UC can be overpaid and underpaid at the same time. They will have paid UC to the claimant or new landlord for the new address, so that they get a windfall.

     
ClairemHodgson
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HB Anorak - 11 October 2018 11:26 AM

There is a long standing approach in DWP that any award of HB or, now, UC housing element is “for” a particular dwelling.  For example HB Reg 104A only makes sense if you accept that premise. It means HB/UC can be overpaid and underpaid at the same time. They will have paid UC to the claimant or new landlord for the new address, so that they get a windfall.

that doesn’t mean it’s not bizarre.

it can’t be right that the 1st landlord loses out through no fault of its own and the 2nd benefits ditto.  whatever ones view of landlords in general .....

now if one of the tory mp landlords find himself the loser many times, it might be changed….....

     
HB Anorak
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Treating the housing element as being discretely for a particular dwelling enables the claimant to be paid for their new home despite their old landlord already having been paid for same period - it means they don’t start the new tenancy with structural rent arrears.  It works better in HB where changes of address have effect from when they happen, whereas in UC changes take effect from the start of the month in which they happen.  I agree this comment probably won’t impress a landlord in a case where they didn’t receive the first month’s top heavy UC payment but they still get clobbered at the end of the tenancy.

Elliot referred to the interaction of this rule with the treatment of advantageous changes of circumstance reported out of time.  In HB, this gets dealt with as follows:

- Any HB paid “for” dwelling 1 is an overpayment, entirely separate from the arrears of HB due for dwelling 2
- Arrears of HB for dwelling 2 will still be paid, notwithstanding the fact that HB has already been paid in respect of this period
- But arrears of HB for dwelling 2 are limited to the amount that was paid for dwelling 1 up to the date when the change was reported.

I would expect UC to work the same way, except everything gets pulled back to the start of the month including the invoice issued to unlucky landlord 1

I should add, I am talking about cases where the payee will be different after the move: if HB/UC is being paid to the claimant personally both before and after, or to the same landlord, it won’t be paid twice.

      [ Edited: 12 Oct 2018 at 08:32 am by HB Anorak ]
ClairemHodgson
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i understand what you’re saying, but wholly unhelpful all round (doesn’t, i wouldn’t have thought, even help claimants particularly).

no one can plan anything if this is the sort of result.

     
HB Anorak
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I suppose it might be worth Shell Dent appealing.  This process is regulated in HB (Reg 104A), but merely implied in UC, so who is to say that the law allows the same approach?  The appeal would be on the grounds that there is no overpayment because the claimant was entitled to that money.  The fact that it has been paid to someone else is neither here nor there.  But they would be shafting the claimant - if their appeal succeeds, it means the claimant isn’t entitled to have the same money paid again.

     
Paul_Treloar_AgeUK
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HB Anorak - 12 October 2018 08:27 AM

Treating the housing element as being discretely for a particular dwelling enables the claimant to be paid for their new home despite their old landlord already having been paid for same period - it means they don’t start the new tenancy with structural rent arrears.  It works better in HB where changes of address have effect from when they happen, whereas in UC changes take effect from the start of the month in which they happen.  I agree this comment probably won’t impress a landlord in a case where they didn’t receive the first month’s top heavy UC payment but they still get clobbered at the end of the tenancy.

Elliot referred to the interaction of this rule with the treatment of advantageous changes of circumstance reported out of time.  In HB, this gets dealt with as follows:

- Any HB paid “for” dwelling 1 is an overpayment, entirely separate from the arrears of HB due for dwelling 2
- Arrears of HB for dwelling 2 will still be paid, notwithstanding the fact that HB has already been paid in respect of this period
- But arrears of HB for dwelling 2 are limited to the amount that was paid for dwelling 1 up to the date when the change was reported.

I would expect UC to work the same way, except everything gets pulled back to the start of the month including the invoice issued to unlucky landlord 1

I should add, I am talking about cases where the payee will be different after the move: if HB/UC is being paid to the claimant personally both before and after, or to the same landlord, it won’t be paid twice.

Wouldn’t HB for 2 homes rules mitigate effects to some extent on respective HB claims ?

     
HB Anorak
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In some cases yes, and that is another key difference between HB and UC.  Councils are quite tough to persuade about “unavoidable” overlaps though - they need more than just a notice clause in the tenancy, the issue is “why did you move when you did - could you not have organised your affairs to avoid this?”  But in principle in an HB case the person to whom the overpayment was made does have that argument up their sleeve - the claimant was entitled to this money and HB for their new home as well.  Unfortunately UC doesn’t have the general unavoidable notice period rule.