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HB INFO REQUEST reasonable AND necessary or not ?
Situation is this -
Client was, and still is, in considerable rent arrears whilst in full time work…....
1. Client submits a HB form in January 13 after going off work sick and receiving SSP.
2. Receives partial HB based on new income, paid direct to landlord.
3. Submits a change of circs on 26 March 13 in her landlords office (Housing Association) confirming she has returned to work, and her landlord records the change of circs is sent to HB office on 26 March 2013.
4. Client returns to paying rent (although not full at first) but she knows no more HB entitlement (same as before)
5. However, HB continues until August 13 (in error).
6. No record of client receiving any notice from landlord to say HB in payment throughout the relevant o/p period.
7. Client receives an overpayment notice for £1000+ because HB office claim they did not receive the change of circs until 21 August 2013, yes 21 August 13, some 5 months after her landlord recorded it was sent to HB office.
8. Appeal submitted on the grounds that client did not contribute and could not have known (as HB paid direct to landlord)
HB have stated they want rent account statements, not just for the relevant period, ie 26/3/13 to 19/8/13 (which they already have) but for 4 months prior to the relevant period and for evidence of any agreements,discussions, correspondence etc she had with her landlord regarding repayment arrangements, due to her existing rent arrears both during and after the o/p period.
HB office appear to believe that her rent payment habits/patterns before and after the relevant o/p period could show that she could have been reasonably expected to know she was being overpaid.
I believe this is both unnecessary and unreasonable on the basis that the only issue is - could she have been expected to know HB was being paid AT THE TIME OF RECIEPT and therefore all other evidence requests outwith the relevant period are not reasonable - however they have not budged and we remain in limbo…...as they are digging their heels in and seeking this info from both tenant and landlord.
To add to my dismay her landlord has also received a decision letter saying the o/p has been assigned to them…BUT
HB appeals officer states in that letter that if this goes to a FtT they will request the o/p be recoverable from the tenant if the FtT does not accept it is recoverable from the landlord
I will naturally be happy to go to FtT and argue over recoverability, from either party but;
Is it reasonable to request info outwith the relevant period ? AND
Can they target both for recovery ? (any caselaw would be helpful)
I’m tempted to do nothing and let it run as they cannot recover at this stage but all advice welcome ......
Whether or not she should have known she was being overpaid is mainly relevant to the question whether an overpayment caused by official error is recoverable.
If there is no official error the overpayment is certainly recoverable from someone. From the details suplied it does not appear that there has been any official error here. All that remains to be established then is from whom the overpayment is recoverable. Both the claimant and the landord receiving direct HB payments are under a duty to report changes of circumstance of which they are aware. This overpayment appears to have been caused by the failure of the claimant and the landlord between them to inform the Council of the change of circs: one or other of them or both of them must be to blame for that. The Council (or Tribunal if it comes to that) seems to be trying to establish who is more culpable: on a common sense view, did the HA fail to report the change more than she did? I am not really sure exactly where the Council is going with its request to see earlier rent statements - I suppose they don’t know themselves until they see them. I guess they are trying to see whether the pattern of payments between all the key dates throws anything up. Is there any particular reason why your client would object to them being produced? It seems harmless enough to me, and it could help her to pin the blame on the landlord.
It seems the most the claimant can hope to gain from any appeal here is a decision that the overpayment is overwhelmingly the landlord’s fault and hardly her fault at all so that it is only recoverable from the landlord and not from her [it is a moot point whether the landlord then has the right to recover the money from her in any case]. If they are equally to blame, it would be recoverable from both of them and if it is not really anyone’s fault, just an unfortunate mishap then it is also recoverable from both of them.
The overpayment being non-recoverable from anyone unfortunately does not seem to be a possible outcome here.
Well…it does rather depend on what happened to the notification of the change in circs doesn’t it? From the OP, the LL record shows it was sent to the HB dept on 26/3/13. The LA seems to have confirmed they received it, but no action was taken until August 2013. So where was it during the intervening 5 months? If it was sitting in someone’s in-tray it clearly is official error. If on the other hand it was somehow lost in the post and not delivered to the LA until August, I agree- there’s no official error (and it would only be fair that the overpayment should be recovered from the LL on the basis that they were the only party aware that HB was still in payment).
Fair point, 64: I assumed that the LA’s record keeping is infallible didn’t I, and it might not be
The landlord has a local service level agreement with the LA and are part of an agreed verification framework which means they provide services on behalf of the LA and are verifiers of original documents/evidence etc….the agreement includes a courier service which the LA provide (and is employed by the LA) who pick up the mail from the landlord in a courier bag and its then taken to the LA. The trouble appears to be that HB office say they didn’t get it (until 5 months later)- but the landlord says it was sent (via the courier) on 26/3/13 - I know all of that sits outside the statutory requirements but I cant help thinking that if anyone has contributed to this error it is neither the client nor indeed the landlord.
It seems to me that the client is certainly not liable for recovery and the landlord arguably didn’t contribute to the error. And although its arguable they knew HB was still being paid - is it not therefore arguable that it was not reasonable to expect them to have known it was HB the client was not entitled to ??
3. Submits a change of circs on 26 March 13 in her landlords office (Housing Association) confirming she has returned to work, and her landlord records the change of circs is sent to HB office on 26 March 2013.
I suspected, when you stated at point 3 above, that the HA was also a designated office for the LA, this would mean the claimant had fulfilled the requirement to report a change.
If that’s the case I would say this is an official error O/P, but, is recoverable from the L/L.
As HBAnorak pointed out, it’s neither here unless the o/p is unrecoverable because the L/L would still look to recover it’s arrears.
I can see why they want to see the rent account record.