Liability to repay overpayments

My client was part of a couple but she was, to all intents and purposes , abandoned by her husband when he went abroad to look for work about three years ago.

Although he has made one or two visits home he has never made any contribution to the household or to provide for the children and she has been treated as lone parent for some while, including being paid HB and ESA as a lone parent from the autumn of last year. This is not in my opinion due to some definite statement made to the DWP that they were separated from that date but more to do with the realisation by all concerned that she had been abandoned and formal steps should be taken to confirm and regularlise her position as a single claimant.

They are not divorced and as far as I know she has not instructed a solicitor regarding a divorce but it is very clear to all professionals involved that the husband has just dumped her and the children and she is constructively, if not formally/ legally, separated.

She has now opened a letter adressed to her husband demanding a large amount in overpaid Housing and Council Tax Benefit. I don’t know the dates or reasons for this overpayment yet and my first instinct is to encourage her to forward the letter to her husband and let him sort it out but I was wondering whether my client could be held jointly liable for the debt if the husband (who is living in the far east) fails to pay up?

A very old Commissioner’s decision R(I)1/71 says that it is the Secretary of State’s job (which should apply to, or at least have a bearing on, HB/CTB) to show that there has been co-habitation: it’s not the claimant’s job to show there hasn’t.

Having said this, I’m currently dealing with a cohabitation appeal where the client says her boyfriend wasn’t there and the DWP are saying “prove he wasn’t”.

As a first step you could just write to the council and say “This woman is no longer in a relationship with her husband. Her husband has not lived at this property for three years. Therefore there would not appear to be any overpayment.” Then see what happens.

Oh yes, sorry: the question of joint liability. If her husband is considered liable for an overpayment that’s supposed to have happened when she was living there, she would be considered jointly liable. The thing is to get rid of the idea that there’s been an overpayment, I’d say.

In civil proceedings the burden of proof is a fluid one.  Initially the person making the allegation must provide some evidence to support it.  Once done, it then falls back on the other party to rebut the allegation.  And so on, and so forth.  A decision must then be reached on the balance of probabilities.

“Whenever a recoverable overpayment of HB can be recovered from the claimant, it can also be recovered from their partner.  A former partner is not a partner any more , so a recoverable overpayment of HB can no longer be recovered from them.  The law requires them to be a couple both at the time of the overpayment and at the time of its recovery….” (Shelter guide to HB/CTB, para 18.32, paraphrasing Reg. 102 (1ZA) HB regs.

Has the client informed the local authority of the separation?  What is current rent liability situation? Is client being paid HB for current rent?...

It seems to me that the overpayment will have arisen because the husband was claiming HB and CTB originally, but did not tell the LA when he abandoned his family and moved abroad. Does the start of the O/P period roughly correspond to the date the husband moved out?