Council Tax Overpayment recovery

The husband was getting CTB at the time, so with the restropective SMI award the liability for the CT passed to his missus.

regards

Apologies for not fully explaining the situation, i am awaiting the appeal pack for further details but it seems as you quite rightly said -

<quote>
- CT Liability is revised and removed following an award of SMI status discount
- The CTB was revised and considered overpaid in totality as the person held liable has since been shown not to have been so liable
- the overpaid CTB is recovered through the CT account
- and then rebilled to your client.

Thanks for your suggestions, i had already considered the DHP and an SMI for my client :)

cheers

In my view the CTB award was not correctly revised.

Reg 68(1) of the CTB Regs provides

“Who may claim
68.—(1) In the case of a couple or members of a polygamous marriage a claim shall be made by whichever
one of them they agree should so claim or, in default of agreement, by such one of them as the relevant
authority shall determine”

The couple agreed at some point that the husband should make the claim, but he was later held not to be liable for council tax and a discount was awarded.  The fact that he was not liable but his partner was liable does not retrospectively take away his right to agree with his wife that he would make the claim, all it does is reduce the amount eligible for CTB (ie by 25%, the amount of the discount)

The net result as far as the couple is concerned is there is nothing futher to recover as the discount offsets the excess CTB.

The wife could appeal the revised decision.  She is a person affected by it

On reading the initial post, I don’t think it’s an issue about who may claim, rather about if the person claiming is treated as having a liability under reg 57.

Strangely, there are quite a number of circumstances in HB and CTB where the level of entitlement is dependant upon which member of a couple is actually the claimant.

Regulation 57 is headed “Maximum Council Tax Benefit”, it does not prescribe who is liable.

Liability is prescribed by S6 of the Local Government Finance Act 1992 as amended.  S6(4) provides

(4) Subsection (3) above shall not apply as respects any day on which one or more of the persons there mentioned fall to be disregarded for the purposes of discount by virtue of paragraph 2 of Schedule 1 to this Act (the severely mentally impaired) and one or more of them do not; and liability to pay the council tax in respect of the dwelling and that day shall be determined as follows—
(a) if only one of those persons does not fall to be so disregarded, he shall be solely liable;

Although entitlment to CTB does depend on liability (S131(3) Social Security Contributiuons and Benefits Act 1992 as amended) S132 (1)  of the Act provides:

“132.—(1) As regards any case where a person is a member of a [couple] throughout a particular day, regulations may make such provision as the Secretary of State sees fit as to–
(a) the entitlement of the person to [council tax benefit] in respect of the day, and
(b) the amount to which he is entitled.”

S132(4) and (5) provide

(4) The regulations may provide that, for the purpose of calculating in the case of the person concerned the matters mentioned in subsection (5) below, prescribed amounts relating to the person and his partner are to be aggregated and the aggregate is to be apportioned.
(5) The matters are income, capital, the applicable amount, [the appropriate maximum council tax benefit and the alternative maximum council tax benefit].

Given that the Act provides for regulations that may provide that amounts are to be aggregated in the case of a couple where one has an SMI discount, the maximum council tax benefit for that couple determined under Reg 57 will always be the amount net of the discount, it cannot be nil.

Reg 68 does not prescribe that the liable person in the case of a couple must make the claim, it provides a choice. That choice was exercised when the husband made the claim.

Incidentally, should the Council argue that the wife has no right of appeal, I suggest you direct them to CH/3817/2004 as authority that she does indeed have that right

Thanks for the replies to my query, they were extremely helpful. After sending a letter disputing her liability i have recently received notification that they have decided not to recover the Council Tax charge.

cheers