Overpayment of Housing Benefit

AndrewHall

Hi All,

I am asking for a friend who has a disability. 
Her local council has decided she was overpaid housing benefit because DWP has decided she had too much savings to qualify for ESA. 
Can she successfully appeal the housing benefit in isolation?

Relevant sections in Housing Benefit Regulations 2006: Schedule 6, regulations 44 - Capital to be disregarded. Reg 44(5).- where a claimant is on income-based JSA, ESA or income-based IS, the whole capital should be disregarded.

How do you interprete this regulation?

@Username_removed

calcotti

If she got income based ESA the capital would have been disregarded and she would therefore get maximum HB.

If DWP have now decided that she was not entitled to income based ESA the capital disregard no longer applies and the HB entitlement has to be recalculated  and will take account of any capital she had at the time in excess of £6,000.

AndrewHall

Even if she is not entitled, it doesn't mean that the overpayment is recoverable 

Adrian_Scope

Hello @AndrewHall. I imagine the first step would be to look at whether the overpayment occurred due to official error, for example were they aware of the savings?
Have you read this CPAG page on official error and overpayments?

calcotti

Adrian_Scope said:

..were they aware of the savings?

Even if they were it would have made no difference while OP was receiving income based ESA because the savings would be disregarded.

Adrian_Scope

Sorry, I should have been clearer, I meant were ESA aware of the savings. I'm aware income-related ESA passports full HB.

AndrewHall

calcotti said:

Adrian_Scope said:

..were they aware of the savings?

Even if they were it would have made no difference while OP was receiving income based ESA because the savings would be disregarded.

It would make a difference if the Council failed to inform the claimants on what to disclose.  And this will be classified as official error. 
Then the claimant can say she did not know if she was been overpaid. 

AndrewHall

Username_removed said:

Can you appeal the HB recoverability in isolation? Yes. What would the outcome be? Guaranteed failure. 

Firstly, it’s open to HMCTS to reject the appeal and strike it out before it gets to a hearing because it has no prospect of success.

Secondly, it has no prospect of success because it sounds like the HB decision is simply that HB was overpaid and is therefore recoverable on the basis that the claimant wasn’t entitled to ESA. It doesn’t seem to be in dispute that there was no title to ESA so the recoverability decision will always stand. 

As capital presumably was over £16,000 then there’s no potential HB during the period of the recoverable overpayment which could be offset so as to reduce the amount recoverable. 

Dead as a dodo. The only way out of this would be to show that the original ESA decision was wrong and from previous posts I believe that one has been done to death also. Sorry to be blunt but it is what it is.

What if there is a new information of beneficial disownership of such capital and the Council did not inform the claimant on what to disclose. Could the appeal succeed on the basis that the claimant could not have known she was being overpaid?  Many thanks. 

AndrewHall

Username_removed said:

The HB was paid because of receipt of ESA and overpaid for the same reason. Nothing changes that latter fact. The HB decision will have been that there was no title to HB because ESA stopped as capital exceeded £16k. As per my previous post there is only one outcome to an appeal on that basis. There will not have been a stand alone HB decision that the latter stops because capital is above £16k.

In this case, if you want to overturn the HB decision then you have to overturn the ESA decision. As that appears off the table as I recall then the matter remains dead as a dodo.

I know what beneficial ownership is. Disownership is not a thing. You’re either the beneficial owner of capital or you ain’t.  

We have advise her to reopen the appeal against the ESA on the ground she was not the beneficial owner because she had no access or control of the capital while claiming ESA.
FtT has made an error of law in uphelding one of the series of DWP's decisions. Hopefully that can open everything up

AndrewHall

Username_removed said:

Did the FTT matter not go to UT? 

Hard to believe that’s tribunal would miss a beneficial ownership issue. 

You can only get a tribunal set aside under reg 37. https://www.legislation.gov.uk/uksi/2008/2685/article/37/made

Which document was missing?

It is a complicated appeal. The claimant did not have the opportunity to put her case to FtT because she did not receive the notification to attend the hearing. Secondly the decision notice was not served properly under Rule 33(2)(b)(c) causing lateness to appealing. 

AndrewHall

Username_removed said:

It doesn’t sound complicated. If the appellant didn’t attend because of a notice failure then that’s a straightforward set aside ground. However, if that wasn’t done at the time then that is also dead in the water at this point. 

At this point then your only option was lack of notice or document missing. If you’re outside the month then the ship has well and truly sailed. 

Your situation is simple really. Can only challenge the recoverable HB by overheating the ESA decision. You have no route to open the ESA decision at this point. 

All over bar the shouting.

Hi,

I am thinking the appeal could be admitted out of time on failure to notified the claimant of her rights of appeal under Rule 33. That may be the breach of her Human Rights. Article 6 of the European Convention on Human Rights required the exercise of discretion to accept the appeal beyond the absolute time limit. 

AndrewHall

Username_removed said:

Can’t see it. Your right to appeal is detailed in the original award letters. A failure to notify of a tribunal is not the same. A right to appeal to UT is detailed with all FTT summary decisions and more so if a statement of reasons/record of proceedings 

As an appeal has already taken place though from what you describe then what deadline is it you think you’d be extending? Extending the right to apply for a set aside or to go for leave to appeal to UT? You would need an extraordinarily strong case to pursue either. I’m not seeing it. 

It is, to be blunt, a straightforward ESA o/p which triggered a HB o/p. The matter went to FTT and the claimant didn’t attend because they didn’t get notice. A set aside ought to have been done there and then. At this point it is, as stated above, dead in the water. Attempts to set aside, extend time limits, come at it from the HB angle, introducing a belated argument about beneficial ownership… all strike me as desperate attempts to find something to reopen it when the bottom line is that the claimant missed their window. Not often I say it but I see nothing to pursue here at all. 

A friend of mine received a decision notice from FtT recently. He was unsuccessful but the notification of appeal rights were missing. We all like to think Tribunal staffs are infallible, but what do I know. 

AndrewHall

Username_removed said:

Doesn’t matter. I didn’t say it couldn’t happen. Anything “could” happen. 

The assertion of a failure to notify should have been challenged at the time. If you know you’ve appealed, no reasonable person would fail to query at some point what was happening. If the first they knew was when a decision arrived through the post then most people kick off immediately. You would need a quite extraordinary explanation for the failure to do either of those things in a timely manner. 

It used to be an absolutely standard thing that someone selected an oral hearing too slowly and found that their case was already heard on paper. That used to happen a lot until the process changed. However, I never came across anyone who didn’t challenge that in a timely manner. 

If I’m being honest you have edged around these issues in multiple threads over a period of time. For a new argument, which you never fully detail, to emerge at this point is, frankly, barely credible. 

Barring some further chronological detail and full disclosure there is nothing to say here. The case is dead. I’m a;l for resurrecting stuff that appears dead to others and have done it multiple times but I also know a truly dead case when I see one. If you want to convince that there is something here then you likely need to stop asking “but…” type questions and post the whole thing in full detail.

Thanks for this.

It is very difficult for a lay appellant to know what or not should have been included in the Decision Notice. 
You would be surprised to know how many people out there who think the Judge's decision is final, unless notified they could challenge it. By the time they realised they could appeal, no advocate would take on their case because it is out of time. Of course, the Tribunal will deny incomplete notification on the basis of the reasons you gave here but that doesn't mean it is the fact. It is unlikely the claimant would not have appeal if he was notified because it is in his interest to do so.

AndrewHall

Username_removed said:

Well there you go. I asked for specifics and we're back to vague generalities. I'm afraid this goes nowhere until the full chronology and facts are laid out. I fully appreciate you may not be able to do that but without it there's really nothing to add to the foregoing.  

Sir,

I have your email.
I will send you the FtT Statement of reason and the draft of the application for permission to appeal.
Is it OK for you to check if the identified errors of law have prospects of success?
This is strictly confidential. 
Thanks.

AndrewHall

Username_removed said:

Can you appeal the HB recoverability in isolation? Yes. What would the outcome be? Guaranteed failure. 

Firstly, it’s open to HMCTS to reject the appeal and strike it out before it gets to a hearing because it has no prospect of success.

Secondly, it has no prospect of success because it sounds like the HB decision is simply that HB was overpaid and is therefore recoverable on the basis that the claimant wasn’t entitled to ESA. It doesn’t seem to be in dispute that there was no title to ESA so the recoverability decision will always stand. 

Dead as a dodo. The only way out of this would be to show that the original ESA decision was wrong and from previous posts I believe that one has been done to death also. Sorry to be blunt but it is what it is.

That's is NOT correct. 

Para 31 of Upper Tribunal case CH/539/2016 [Rossendale Council v RM, (HB)(2017)] says the DWP's decision is not binding on the Council's decision.  It is for the Council to obtain the evidence to defend its own decision.

Besides, I saw this posted from a reputable welfare Solicitors who was able to win a HB decision even after the DWP has won the initial Tribunal:

1. Alleged cohabitation case
2. (IS) O/P period 2013-2016
3. (IS) FTT was heard in 2016 and Appellant lost
4. (HB) FTT was eventually heard in 2021 and Appellant won and entitlement reinstated from 2013 - 2017 when circumstances changed.

The latter Tribunal was a more thorough, with day long hearing, with the benefit of better preparation and supportive evidence. 

AndrewHall

Hi Mike, 

Welcome back.

I am sorry I found your advice very incomplete and confusing. 

You said the LA has the power to investigate alleged cohabitation but not capital issue, I would appreciate if you can signpost me to the relevant Regulations. 

You have not considered the recoverability issue where the LA might be aware of the capital and did nothing to stop payments. The onus is on the LA to provide all the evidence to show the appellants had failed to disclose. 

Besides,, there might be a circumstance where the new evidence that has come to light casts doubt on the beneficial ownership of the capital. There should be an obligation for further investigation, particularly when the HB appeal has been accepted and admitted by the Tribunal for hearing. 

The case is far from over for the appellant and I will encourage her to keep going. 

AndrewHall

Username_removed said:

Username_removed said:

If I’m being honest you have edged around these issues in multiple threads over a period of time. For a new argument, which you never fully detail, to emerge at this point is, frankly, barely credible. 

Barring some further chronological detail and full disclosure there is nothing to say here. The case is dead. I’m all for resurrecting stuff that appears dead to others and have done it multiple times but I also know a truly dead case when I see one. If you want to convince that there is something here then you likely need to stop asking “but…” type questions and post the whole thing in full detail.

I think I’ve made clear, as per this earlier quote, what my view is on the partial view we’ve been given of these circumstances. My position remains unchanged. I’m not here to give individual advice. If you can find UT decisions, even if they’re then misinterpreted, then I’m confident you can figure out the relevant regulations. 

In consecutive posts you’ve told me my “advice” is both “wrong” and now “incomplete”. With all due respect you have been given an answer in full. I’m sorry you don’t like it. There are plenty of advice services out there. 

I certainly haven’t considered the issue of where a LA “might be aware”. Either they were or they were not. No-one can offer you anything on the basis of what “might” be the case. 

You also say “ The onus is on the LA to provide all the evidence to show the appellants had failed to disclose.”

I’m afraid this is wholly inaccurate. Failure to disclose is a s71 social security ground for recovery. It has nothing to do with HB and never has. All HB overpayments are recoverable unless there is official error. Failure to disclose does not enter into the equation and the onus you describe simply does not exist. The onus is on the claimant to show there was official error; that they could not have known they were being overpaid and did not contribute to the error.

There should not be any obligation on a LA to investigate beneficial ownership on a stop notice case. If the ESA stoppage wasn’t challenged and a further low income claim to HB wasn’t made then it remains game over. You can’t win a case on what you think an authority should do if the law simply doesn’t bear that out.

I won’t go round in circles having already stated this issue is dead. HB stopped because ESA issued a stop notice. Unless ESA entitlement can be shown or a further claim to HB was made then the matter is done and you are offering nothing but false hope to the ex claimant. 

Mike,

Thank you for your detailed response. 

As I understand it, any appeal to the FtT is on any ground, regardless of what the LA should or shouldn't have investigated.

Could the Tribunal (hearing the HB appeal) now do the fact finding on the beneficial ownership of the capital?

AndrewHall

Thanks so much Mike, I appreciate you.

However, and after some digging, I find that the decision to end HB was made a week before the date on the Notification of cessation of ESA benefit. 

Please what should we do?

AndrewHall

Mike,

I would greatly appreciate your response on the way forward 👍

Many thanks 

woodbine

With respect I'm not sure that I see any point in digging up a problem from 6 weeks ago, that had already received long and detailed replies, and is now "blocking" the front page of the forum.

Having said that once again welcome back Mike after your prolonged absence.

poppy123456

woodbine said:

With respect I'm not sure that I see any point in digging up a problem from 6 weeks ago, that had already received long and detailed replies, and is now "blocking" the front page of the forum.

Andrew asked for Mike's advice but it would have been difficult to do that as Mike hasn't been here. As you correctly stated yourself with his "prolonged absence."

Mike's comment this evening was in my opinion out of respect to say that there's really nothing further to add. Better to do this than ignore someone.