Overpayment recovery

I think the LA is wrong to make a second payment full-stop.  It should be offset against monies already paid by way of HB.

Thanks for your replies.  Birmingham City Council are treating the £800.82 paid to our resident as an overpayment and below is part of their letter to ourselves:

“I have arranged for an amount of £800.82 for the period 11 March 2010 to 9 May 2010 which was incorrectly paid to the tenant to be reassigned to St Basils and this will be received in the next cycle payment.  The overpayment of £800.82 to the tenant will be recovered by instalment recovery.”

My thinking was the same as yours, that they could not recover from ourselves, or our resident, as it was an administrative error.  Can you advise me what regulation I can quote when I write to them.

Thanks for your help.

see R(H)2/08

Irene - 22 September 2010 02:36 PM

.....  Birmingham City Council are treating the £800.82 paid to our resident as an overpayment and below is part of their letter to ourselves:.

In law, there is no overpayment. There is no legal basis on which BCC can choose to “treat” the monies paid as being overpaid.  The CD cited above analyses the legalities.

By making a second payment, that payment IS an overpayment. Ironically, because of the advice in this thread, that o/p will be recoverable….

In a very similar scenario involving a well known London Borough, I was successful in obtaining a compensatory payment from the LA equivalent to the amount paid to the client in error after pursuing the complaints procedure to stage 3.  It might be worth doing this as well as appealing the OP decision sent to the service user.

As an example of how much difficulty some LAs have holding their hands up when they get things wrong, the LA initially rejected the complaint on the grounds that the request to pay the landlord direct also contained a request for backdating and that it was wrong to include two requests in one letter as they could only deal with one request at a time.  I kid you not.

Thanks for the interesting replies.  Regarding Neil’s comments, I assumed BCC would deal with this as a compensatory award (I have also had success with this in the past).  I was surprised when I found they were treating the payment to the young person as an overpayment.  I don’t deal with benefit problems on a regular basis and would appreciate some advice on what points to make in a letter I plan to send to BCC.
Thanks.

There is an issue here as to whether or not the LA made an initial decision to pay the claimant or the HA.

If the LA made an initial decision to pay the HA but there was an administrative mistake, eg the alternative payee was not input to the computer, then its arguable that payments made to the claimant were official error overpayments, as he had no entitlement to them under the terms of the original decision.

This argument was supported by Judge Turnbull in CH/0765/2008.

The decision that benefit was overpaid is subject to the same appeal rights as any other overpayment decision.  It must be notified to all the parties in the format required by R(H)6/06.  As there is no doubt that the overpayment is in consequence of an official error, the test of whther or not the relevant person (in this case the claimant) could reasonably be expected to realise at the relevant time that he was being overpaid must be applied before it can properly be held to be recoverable

See also HB Regulation 100(2) and (3)  which provides for certain official error overpayments to be not recoverable

Overpayment is defined in Reg 100 as “

“any amount which has been paid by way of housing benefit and to which there was no entitlement under these Regulations (whether
on the initial decision or as subsequently revised or superseded or further revised or superseded) and includes any amount paid on account under regulation 93 (payment on account of a rent allowance) which is in excess of the entitlement to housing benefit as subsequently decided.”

Notice the phrase “whether on initial decision”. 

This is where the argument develops because if the payment is made to a person outside the terms of the original decision (which must in all cases include a determination made under Reg 95 or Reg 96) then the person receiving the payments outside the terms of the original decision had no entitlement to them under the Regulations, even if the only Regulations concerned are Reg 95 or 96.

In R(H)2/08, the initial decision was revised and so the offestting rule under Reg 98 had to be applied, but in CH/0765/2008, there was no such revision.  Judge Turnbull held that the Council would therefore be bound to pay the housing association under the terms of its own decision and the Council had no grounds to revise that decision. Any payments made to the claimant must therefore be overpayments as the only person entitled to payment was the HA.

I accept though that there were no submIssions on the question of overpaid benefit and the Judge’s comments on that question are obiter

hi jj

good point, thanks - have amended name of judge at the bottom of summary - heres a link -

CH/2731/2009

cheers ros

Sorry for delay in responding - off work for a few days and then pressure of work.  Thanks everyone for all your advice but I am still somewhat confused.  Our young person’s keyworker will be helping him to do an appeal letter and I would like to advise her on what to put in it - some pointers would be extremely helpful.

The following would be my standard letter:

“To Whom It May Conern:

I wish to appeal the decision dated (date) that I have been overpaid (amount) for the period (dates) and that the amount is recoverable from me.

As the alleged overpayments arose on account of the Council’s own errors, they will only be recoverable if I could reasonably be expected to realise (i.e. to fully understand) that I was being overpaid at the time.

I cannot see how I could possibly be expected to realise that I was being overpaid, given the lack of information given to me by the Council.

This letter was written with the help of (support worker).  I authorise her to act on my behalf. 

Yours sincerely

(Signature)”

If the person has not been notified of the overpayment, you should simply say that ” It has come to my attention that deductions are being made from my entitlement on account of an alleged overpayment of (amount).  I have not been notified of that decision but I wish to appeal it”

You then carry on as above