Absences

I am trying to do a submission about a Housing Benefit overpayment. My client received HB for one Housing Association property. She did a completely unofficial swap for another flat with the same Housing Association. She continued to have HB paid into the rent account for her original property, and the person she swapped with continued to pay the rent for his original property. The situation continued for 3 years and the LA now says there is a 3 year overpayment of HB.

I am exploring (a) absences because of fear of violence as one reason for the swap was anti-social and threatening behaviour. However, she did not inform anyone and this would be a maximum of one year in any case
(b) underlying entitlement - had she swapped properly had a new tenancy agreement and made a claim for HB she would have been entitled to full benefit on her new flat which would be a very similar amount. 

I’d appreciate any comments/suggestions

Ruth

If you can prove liability at the new address then Underlying Entitlement should not be a problem, the chane of address would just be a late reported change of circumstances.

The “unofficial” bit may make this tricky but there may be an argument that your client has to make payments to continue to live in the home and it is reasonable to treat them as liable. Reg 8(1)(c)(ii)

Thank you. I think there may be some difficulties with liability given the Housing Association knew nothing about it,  but I think it is worth a shot and may well be the strongest argument I have.  The Housing Association have shown some sympathy to her mental illness so I don’t know if they may be prepared to state that they treat it as a de facto swap. Ruth

Just realised a problem with Regulation 8 -  the liable person was actually paying rent - this is why it took the landlord so long to find out what was happening. Ruth

Oh dear.

I think the absence through fear of violence may also not be straightforward as it may be difficult to show an intention to return, and may also be difficult to retrospectivly show that at the time of the unofficial swap the absence was unlikely to exceeed 52 weeks.

Your best option could be to contact the local Councillor, explain the situation and ask them to support the writing off of the overpayment. You could point out that if the swap had been “official” then your client would have received full HB, so you they would not obtain any advantage by having the OP written off.

Yes, I have drafted a submission and there are some legal points, but the case for exercising discretion is much stronger than the legal case. It may be that the Housing Association itself will be sympathetic to this and may be prepared to say that had they known about the swap they would have been happy with it. Thanks for all the legal suggestions though Ruth