HB overpayment recovery - from claimant or landlord or both?

It sounds like you and the LA were advised at the same time
However LA, rwally need to be paying 4 weeks notice period from when the stay became permanant.
Also - need to establish if tenant went into the home in MArch on a temp basis and the decision was made later to become permasnt. Prob best to give the NOK a call back and ask foer the details of when your tenant wleft home ( maybe a stay in hospital?) then went into nursing/care hiome and whether the move was initially permnant (unlikely) ior was on a trial basis/ for rest/recovery/recouperation ( in whcih case 52 weeks absense rules apply to the HB cvlaim)

Id be asking for a reconsideration on the grounfds that 1) the 4 weeks notice period from the date the move became permanant needs to be awarded and pointing out that although you were receivbing payments, you couldnt reasonable know you were being overpaid as customer (or their representatives) didnt tell you either.

Sounds like the s/d has come to you as “easiest” to recover it from you…

Next of kin has no skin in this game and is the wrong person to ask. A common mistake though. Intent with regard to whether a stay is temporary with a view to permanence is solely based on the perspective of the claimant.

Have won numerous appeal over the years where the appeal was founded on a next of kin or social worker stating various versions of “Well they were never going to be coming out regardless of intent” which is nothing to the point.

I wasnt suggested asking the NOK for their opinion, merely to establish the facts as to the dates customer left hoime and reasons for that, and when the “official” decision was made thqat the customer wasnt returning home

The intention to return has to reasonably held, hence why the 52 temp absensce allows Hb to cony=tinue while the customer hopefully recovers sufficently to return home, or for their health/ support needs be evauluated siffieciently to establish that the customer is unable to return

for example, My late granny was in hospital, she was early stage dementia and had a broken hip - she was adamant she wanted to go home.  ready to be discharged, from the broken hip.
Dr asked where she was living and when was told she lived alone with carers visiting 3/4 times a day, he said no way, she is not safe and she wouldnt be doischarged home.
So the decision isnrt al;ways the customers , although obviuosly their wishes are seriously considered

From CSHB/405/2005:

30. Mr Craig argues that there is no difference between ‘desire’ and ‘intention’. I must disagree. A ‘desire’ to do something is quite distinct from an ‘intention’ to do so. An intention involves the aim or purpose of carrying out what is intended, whereas a desire may be no more than a wish or hope, however remote, to do something; so far as “intends to return to occupy the dwelling as his home” in regulation 5 is concerned, in my judgement this must encompass, moreover, not simply a subjective purpose to do so but also that, objectively, such a return is a realistic possibility

The decision relied on third party evidence as to the claimant’s realistic intention.  So I think the opinions of NOK can be relevant to how realistic is the claimant’s intention to return, and the claimant’s own expressed intention might not be determinative.  The DM needs to weigh all the evidence.

Yes, my point was that over the past 30 years I have repeatedly seen decision makers do absolutely nothing but seek the “opinion” of the next of kin or a social worker to the absolute exclusion of the intent of the claimant. During a period where I was doing nothing but community care WR I managed to find zero instances of the claimant being asked anything in more than 100 consecutive cases. Of those I would estimate 30% plus were examples where professionals and others went down the line of “Well they say it’s temporary with a view to permanent/they want to come home but realistically that’s not going to happen” and actually it did.

Whole web of issues here

It is now settled law that the Council must make a single recoverability decision and issue it to all parties ( in this case claimant and payee) See R(H)6/06

If the Council have not complied with the requirements following R(H)6/06 it is then very strongly arguable that there is no overpayment that is legally recoverable from anyone (See CH/3734/2006 at [33])

Notwithstanding R(H)6/06 HB Regulation 101(2) (b) and HB (SPC) Reg 82(2)(b) provide

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

The Court of Appeal held in Sharples v Chief Adjudication Officer [reported as R(IS)7/94] and in Franklin v Chief Adjudication Officer [reported as R(IS)16/96] that a person cannot be held liable for failing to disclose what he does not know. A Tribunal of Commissioners has similarly confirmed that” a person cannot be held liable for failing to disclose what he does not know. Consequently, one cannot “fail to disclose” a matter unless one knows of it.  Whether a particular person “knows” of a matter is determined by a subjective test.” [CIS/4348/2003 paragraph 13(ii)] [upheld by Court of Appeal as B v Secretary of State for Work and Pensions (now reported as R(IS)9/06)

The question as to whether the claimant may have an intention to return is far from straightforward and was considered ( in a different context)  by the Court of Appeal in THE MAYOR AND BURGESSES OF THE
LONDON BOROUGH OF HAMMERSMITH AND FULHAM- v - ANDREW CLARKE and DONNA CLARKE 20th November 2000

The Court held that Mrs Clarke had an intention to return home in the circumstances

Mike is broadly correct that, provided the person entering care retains mental capacity for the decision as to whether the stay in a care home is temporary or permanent, then whether that stay actually is temporary or permanent should be largely based on what they themselves want to do and not third parties.

We see too many examples of social workers and/or NOK/family members who see the most expedient decision as being, “shove them in a care home, that is best for them” but the Care Act is pretty clear that it’s your wishes and abilities that are key, not simply the opinion of others.

The Commissioner’s Decision referenced by Peter is based on the previous legislation which governing social care support and it’s impossible to tell whether the client indeed did have capacity to make the specific decision (although there is reference to wanting to go back home to die rather poignantly).

If I was you, I’d probably be checking with social services initially to try to understand whether this was initially some kind of temporary stay, for example respite or similar, and when the stay was decided to have become a permanent stay, as well as as obviously asking the person themselves.

We have had a situation where the client was placed in res care “permanently” following a deprivation of liberty assessment. They remained adamant that they wished to return home and challenged the DOLs assessment in the Court of Protection. On that basis we successfully argued that they clearly had the intention to return home and HB was paid up to the 52 week point.

Paul_Treloar_AgeUK - 28 September 2022 09:37 AM

Mike is broadly correct…/quote]

That’s the headstone sorted :)

Just going back to Stainsby’s comments on overpayments, if there is an overpayment in this case at all of course, in HB it won’t help if the landlord didn’t fail to disclose a material fact because, in the absence of any official error, the overpayment would still be recoverable from them under Reg 101(2)(a).  The best they could hope for would be that the overpayment would be recoverable from the claimant as well, but the landlord would still be in the frame.  That is quite likely to be what the Council has decided in this case.

Failure to notify in accordance with R(H) 6/06 (and more recent decisions developing the issues explored in that decision) only brings temporary respite anyway: it is rare for a Tribunal to say “you have blown your one chance of making a recoverable overpayment decision over this issue, now there can never be an overpayment”.  What normally happens is that the Tribunal declines jurisdiction because the decision is incomplete, which means the Council has to start again with proper letters, or the Council is directed to patch things up in the course of the appeal proceedings.

The best way to challenge this overpayment is to focus on the substance and argue that entitlement continued for as long as possible because of the “intention” issue discussed above.

I agree to an extent that is thre is no official error the default is that the overpayent is recoverable from the payeee

I no longer work for landlords but here we have 3 possibilities if there were overpayments

1 Offical error e.g. on account of uwarranted delay by the LA .  The overpayments are arguably not recoverable

2 No official error an no culpability on anyones part.  The overpayments are recoverable from the payee (101 (2) (a))

3 If the landlord did not know that the claimant had gone into permanent care and the permanency is not in dispute and the claimant had not disclosed the change to the LA, the overpayments are recoverable from the claimant instead of the landlord (101(2) (b) applies not 101(2)(a) )

I wholeheartedly agree that the best argument is that of ongoing entitlment if the claimant wants to return home.