Recoverable overpayment

Whilst talking to a friend who works in LA I was advised that they are currently operating with a 7 week backlog.
I asked about overpayments caused by LA not re assessing claim and was told that they would recover.
Surely they are then going to be inundated with appeals as the overpayment is as a result of their delay and not of the clients making.

The difficulty is that it isn’t enough just to argue the delay in itself is/was an error.  An overpayment caused by such a delay will still be recoverable for HB/CTB if the claimant could reasonably have been expected to realise there was an overpayment at either the time of the payment(s) or at the time of any notice relating to the payment(s).

The arguments against recoverability will have to be two fold:

1)  that the delay amounts to an error; and

2)  the claimant couldn’t reasonably have been expected to realise s/he was being overpaid (at either of the two points in time specified above).

Note that without the delay counting as an error, you never get to “2”; the overpayment will be legally recoverable irrespective of any other consideration.  There is plenty of case law on the issue of whether a delay in processing counts as an error.  CDs / UTDs have variously found there to be no error for delays ranging between 11 days to nearly 3 months.  Other CDs / UTDs have addressed the issue of whether or not a claimant can rely on the lack of response to a change in circs notification; most finding that if a claimant notifies a change of circs it is difficult to see why they would expect no response.  Further, other CDs / UTDs have found that if a claimant has a change in income, knowledge that HB/CTB are means tested is sufficient to conclude a claimant could reasonably have been expected to realise s/he was being overpaid.

My advice is to focus on arguing the delay is/was an error and to pay close attention to what information was available to the claimant at the specific points in time that matter in the context of reasonably being expected to realise there was an overpayment.

Each case will turn on the facts of the individual cases and I would expect there to be differences in the outcomes of Tribunal hearings.  In truth, my experience is that the majority of appeals will be unsuccessful where a delay in processing is the sole cause of the overpayment.

If you need case law citations, feel free to ask but for personal reasons I can’t guarantee coming back to this thread.

NB:  The above presumes no complications with other parties being legitimate targets.