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Recovery of overpayment
Hurrah- we’re back!!
Is there any provision for an HB overpayment to be recovered from someone else’s HB? In brief, circs are that client incurred an offical error O/P due to LA using incorrect LHA rate when assessing claim. Tenancy was joint with adult children (whom LA incorrectly treated as ND’s on client’s claim). LA later noticed error and reassessed on shared accommodation rate of LHA. One of client’s children then claimed HB and requested backdating which was agreed, but the LA has offset the whole of the resulting entitlement against client’s O/P (which LA is insisting is recoverable- now subject of appeal).
I don’t think they can do this but would be grateful for second opinion before I go in with all guns blazing.
On the basis of the circumstances stated, there is no legal basis for recovery in this way. The only way in which it would be lawful would be if the “new” clmt misrepresented a material fact out of which the overpayment arose for the “old” clmt (the issue of failing to disclose is not relevant as a non-dep / joint ten would not be under a duty to disclose for the “old” award. No duty means no failure).
The LA is probably going to argue it can’t pay two sets of benefit for the same period. That’s a moral argument, not a legal argument.
On that theme, one other thought crosses my mind. The LA might try arguing that benefit can’t be paid to different members of the same family for the same period - s.134(2) of the SSCBA 1992. Such an argument would be fundamentally flawed in this case because neither jt tens or non-deps fall within the meaning of “family” for social security purposes.
[ Edited: 29 Feb 2012 at 12:06 pm by Kevin D ]Ta Kevin- exactly what I needed.
Nice one- hadn’t thought of that even though I read the decision only recently. Thanks very much!!