Housing benefit overpayment recovery

Hello

Couple where one charged with benefit fraud committed when he had a joint claim for HB with his partner a few years previously. They separated and now she has claimed HB and they are recovering overpaid HB from her. Is that correct? I am not sure what is meant in the reg below re: “when the deduction is made”? They are not members of the same household now and it is now that the deduction is being made?? So does that mean it shouldn’t be?

Thanks in advance

(4) For the purposes of paragraph (2)(b), recovery of the overpayment may be by deduction from any housing benefit payable to a partner provided that the claimant and that partner were members of the same household both at the time of the overpayment and when the deduction is made.

Which regulation is the para (4) you quote from? If it’s regulation 101 of the HB Regs 2006, para (4) was removed by SI.No.2824/2008 as from 6.4.09 but sorry if that’s not the reg you mean.

Thanks for quick response.  Yes it was that Reg - I got from Shelters website here: https://england.shelter.org.uk/legal/benefits/housing_benefit/overpayments_of_housing_benefit#5

Do you know what it was replaced with or what the current situation is?

Actually I have found it but I am still unclear whether it means they can recover from her?

Amendments to the Housing Benefit Regulations relating to overpayments

4.—(1) The Housing Benefit Regulations shall be amended as follows.
(2) In regulation 101 (person from whom recovery may be sought)—

(a)

for paragraph (2)(1) substitute—
.
“(2) For the purposes of section 75(3)(b) of the Administration Act (recovery from such other person, as well as or instead of the person to whom the overpayment was made), where recovery of an overpayment is sought by a relevant authority—

(a)

subject to paragraph (1) and where sub-paragraph (b) or (c) does not apply, the overpayment is recoverable from the claimant as well as the person to whom the payment was made, if different;
.

(b)

in a case where an overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact (in either case, whether fraudulently or otherwise) by or on behalf of the claimant, or by or on behalf of any person to whom the payment was made, the overpayment is only recoverable from any person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made; or

The regs that removed reg 101(4) also inserted a new para 1ZA into reg 102 of the HB Regs 2006 -

“(1ZA) Where an overpayment is recoverable from a claimant who has one or more partners, a relevant authority may recover the overpayment by deduction from any housing benefit payable to the claimant’s partner, or where it is unable to do so, may request the Secretary of State to recover any recoverable overpayment from the benefits prescribed in regulation 105(1B) (recovery of overpayments from prescribed benefits), provided that the claimant and that partner were a couple both at the time of the overpayment and when the deduction is made.”

Very similar to the para 4 of reg 101- looking at explanatory memorandum to SI.No.2824/2008, was changed to make it clearer that can recover from partner’s HB and other benefits, but only where still a couple at time of deductions -
http://www.legislation.gov.uk/uksi/2008/2824/pdfs/uksiem_20082824_en.pdf

In your post you say that had a joint claim, but was it the former partner who was the claimant out of the two of them? If it was, I think it’s clear they can’t recover from your client.

What does anyone else think?

Yes that’s the key to it: who was the claimant when the overpayment was made?  The current HB claimant or the ex?

Even if the ex was the claimant, the overpayment could be recoverable from the current claimant if she actively misrepresented facts on behalf of the overpaid claimant - perhaps by signing a declaration on the claim form as partners are traditionally asked to do.

If the ex was the claimant and the issue is failure to disclose, the current claimant cannot be fixed with that - as the partner on someone else’s HB claim she had no direct relationship with the Council and therefore no duty to disclose.

So - vital piece of info: who was the claimant at the time of the overpayment?