HB Overpayment ... Late appeal?

Hello All, your guidance in preparation for an appointment tomorrow would be very appreciated.

History (2006):
Client at age 16 (not a care leaver) was housed in a HA property and had a key worker, HB paid direct to landlord.

Client moves from Somerset to another county and into her boyfriend’s home, key worker helps with the organising of this and says she will notify LA. Cl notifies JCP re; JSA change of address and moving in with bf.

LA is notified by JCP that JSA ceased and writes to Client at Somerset address, letter says the usual… we have been notified by JCP that JSA ceased, HB suspended, please provide evidence of income in one month or we will close claim.

Client does not get letter as no longer at this address.
LA send further letter, this time to Berkshire advising that HB claim closed and overpayment, however client has moved again so does not get this letter.

Current (2014):
Client moves back to Somerset and makes new claim for HB, client then told about overpayment, client submits appeal. LA states out of time and so HMCTS are seeking a written explanation of why appeal should be considered in-time.

Now I can argue notification was not received by the client and therefore the decision has not been effectively communicated and the time-limit didn’t start to run until the client was notified etc but where I am struggling is… even if HMCTS accepts appeal as valid what are my arguments?

Client had a duty to notify the LA but didn’t.
Should LA seek recovery from HA as well as client?
HA knew client had moved out but HB kept being paid (over a £1000 of HB!).
All help gratefully received.

If HB had been paid to the HA then the LA should seek to recover from the HA under HB reg 101 (not sure which paragraph from memory, sorry).

However, if the HA can prove they were not aware she had moved (try to find out when she put her notice and/or returned her keys) the recovery would switch back to your client.

Are there grounds for an overlap to cover liability on 2 homes, as this may reduce/offset the OP??

In a case like this there is almost certain to be a way of buying time due to faulty notification or other procedural issues.

As a landlord receiving direct payments of HB the housing association was under the same duty as the claimant to report changes of circumstance that it knew about.  As soon as the HA knew its tenant had moved, it shares responsibility with her for causing the overpayment. HB Reg 101(2) in turn makes the overpayment recoverable from both of them.

The Council must inform both of them that the overpayment is recoverable from both of them.  At this stage it doesn’t matter how the Council intends to go about recovering - that isn’t part of the notifiable decision.  A common mistake that authorities make in cases like this is to notify the claimant and landlord of slightly different things - for example they might notify each that it is recoverable from them without also mentioning that it is recoverable from the other.  Both parties need to be notified of the same decision - that doesn’t necessarily mean an identical decision letter, but it must contain the same substantive information (we think there has been an o/p; it’s recoverable because it wasn’t caused by official error; it’s recoverable from both you and your landlord/your tenant because you both knew about the move and neither of you told us about it).

The landlord should be involved in the appeal as a third party (that’s why they call these “tripartite” appeals).  If the landlord hasn’t been involved as a party to the appeal up to now, that’s another reason to postpone.

It may be delaying the inevitable, but the above are examples of things that might need sorting out before the appeal proceeds any further.  I remember Stewart Wright once saying (before he was promoted to the UT leaving a very big hole to fill at the FtT) that he felt there should always be a preliminary directions hearing in a tripartite overpayment appeal - there are so many things that can go wrong procedurally.