Housing Benefit Overpayment

[MissFantastic]

Hi,

thanks for reading, I was just wondering if anyone can offer me any advice on my situation.

I am a single parent and until recently was entitled to partial housing and council tax benefit.

As my wages increased I am no longer entitled to any. I gave in all my documents on time to the council for them to re-assess my claim, they did not deal with it when they received it and therefore were overpaying my landlord and my council tax account for much longer than they should have been.

I was not aware that they were overpaying duting this time, i expected my benefit to be reduced but not stopped altogether.

So two months later when they wrote to me to say i owe near enough £1000 I wrote to them to say I dont mind paying for the overpayment incurred before I gave in my documents, but they wre at fault for letting it run on for two months.

Their benefits support manager wrote to me so say he was looking at it, in the meantime i received an invoice for the total amount to be paid by next week.

When I phoned their debt department and asked for them to put it on hold as it was being looked into they said they wont do that unless it goes to tribunal.

I have since emailed and phoned and no-one gets back to me.

If you have any advice on what I should do next I would be very grateful, also if you think I have a case?

 

Many thanks x

[angryandy]

Hi Miss Fantastic

 

To be honest i am not really the person to be asking for advice as this subject is not my virtue. My circumstances were different to yours. The people you need help off are Installspark and Erikapnp. The first one being an absolute dab hand at local government issues.

 

In my honest opinion though i would assume you have a case as this is a mistake on their part and certainly not yours. I would appeal on the grounds that they had the information in front of them and chose to ignore it thus leaving you now in the sh*t. My council sent me a bill for £850 and told me if it wasn't paid in full within 14 days they would take legal action against me and/or send it to the bailiffs to collect on their behalf. It was only on my second appeal (just before it went to a tribunal that they decided i was right and they where wrong).

 

Have you appealed the decision? If not do it as soon as possible.

 

On a more personal level i don't know why you are not entitled to any housing or council tax benefit. If you would like to pm me your personal income i would be happy to look at the figure and find out if you are entitled to anything. How many kids you have as well etc etc

 

Hope this helps you slightly

 

Andy...

[installspark]

You have the right to appeal against the alleged overpayment within a 30 day period of you receiving thier letter. Also, and most councils conveniently forget this, if you appeal against an overpayment no deductions or pursual of overpayment can be made until the decision has been reconsidered or the appeal heard at a tribunal.

 

From what information you have posted it would appear that there may be a case for claiming official error on any appeal; however this would depend on exactly when you notified them of the change on circumstances. If you notified your council before the changes occurred then official error is clear cut, if the notification was done after the change occurred and you could reasonably have known that your benefit amount would have changed then proving official error is going to be more difficult but not impossible as they still took over 2 months to recalculate the benefit thereby creating a larger overpayment than was necessary. Either way the council should have suspended your claim upon notification of the change which would have prevented the level f alleged overpayment.

 

You may find this post useful and it contains links to the regulations concerning overpayments.

 

http://www.consumeractiongroup.co.uk/forum/benefits-tax-credits-minimum/203059-east-riding-yorkshire-council.html#post2226672

 

On a positive note, I was also allegedly overpaid following a notification of a change in circumstances. I won my appeal as my council accepted that I notified them before the change occurred and they failed to suspend the claim whilst awaiting a recalculation. The council agreed that it was an official error and as such the alleged overpayment is non recoverable.

[MissFantastic]

Thanks so much for your advice Andy and Installspark, I will contact them today with my new found knowledge.

Do you knw if councils generally prefer to deal with these issues themselves before it goes to a tribunal?

 

Ill keep you updated, thanks again so much for your advice.

 

Natalie

[angryandy]

I think most councils wouldn't expect you to appeal never mind going to a tribunal. They think you will back out before it went that far.

 

The tribunal is independant from the council so you should get a fair hearing (i'm making you sound like you're on death row).

 

If they have overpaid you for two months after having given them notice of a change of circumstances, then in my opinion and by the sounds of installspark you should definetly appeal as we both think you have a case.

 

You have nothing to lose and i personally would go for it. When you write your appeal letter do a proper one and not just the one you can get out the council offices. It looks more personal that way.

 

Defo keep us informed of the situation and goodluck. Remember you can win these cases it is just a matter of not letting them intimidate you.

[installspark]

The appeals procedure for HB/CTB is broadly in line with that of the DWP's procedure for benefit appeals. Once your appeal has been received the original decision will be reviewed taking into account the information you give in your letter of appeal.

 

If the decision can be revised you will be notified of this, should the council not reviese the decision then you will need to notify them that you wish to take it to a tribunal. As angryandy has said, the appeals tribunal is independent of the council and will consider evidence and arguments from both sides.

 

An appeals tribunal, although a formal legal procedure, is held in a relatively informal setting and the panel is not there to intimidate you. You can elect to attend an oral hearing or elect to have a paper hearing where there you do not need to attend. It should be noted that in the case of the latter the panel will only consider the written evidence and arguments already made, and you will not be able to add any further evidence or argument to your case. I would always advise to elect for an oral hearing. You have the right to be represented at an oral hearing by a solicitor, an organization such as CAB, another individual or to represent yourself.

 

Should your appeal fail at the tribunal stage you may seek leave to appeal to the second tier appeals tribunal, this however is is a very formal legal procedure and can only deal with points of law. It is also costly as you will need professional, legal representation.

[angryandy]

Think i must also add that if you ask for a paper hearing but the council want an oral hearing you must have an oral hearing. Just don't be intimidated by them. You have a genuine case so just basically say what you see!!

[MissFantastic]

Hello All Just an update, after chasing them to speak to someone I found out the guy who was dealing with my case had conveniently gone on leave for a few weeks and no-one else knew what they were doing, anyway I complained to the chief executive and my complaint/appeal has apparantly already been looked at at stage 1 and is now being looked at stage 2 by the customer services director.

I am told I should get a response by 31st August, is this a good sign or a standard response by them?

 

It seems such a simple dispute i don't understand why someone appropriate cant just look at it and make a decision, I suppose that would mean they were doing their job efficiently and that would just be far too simple wouldnt it.

 

Thanks for all your advice.

[Big Boss Man]

Hello All Just an update, after chasing them to speak to someone I found out the guy who was dealing with my case had conveniently gone on leave for a few weeks and no-one else knew what they were doing, anyway I complained to the chief executive and my complaint/appeal has apparantly already been looked at at stage 1 and is now being looked at stage 2 by the customer services director.

I am told I should get a response by 31st August, is this a good sign or a standard response by them?

 

It seems such a simple dispute i don't understand why someone appropriate cant just look at it and make a decision, I suppose that would mean they were doing their job efficiently and that would just be far too simple wouldnt it.

 

Thanks for all your advice.

 

Sorry to hear about the problems you are experiencing, i have been through and still am going through similar sort of problems

 

Any council has to be given the chance to rectify there mistakes before it goes to tribunal, like your council, my council has a two tier complaints procedure, basically if the problem remains unresolved after that point, you can request it goes to an independent tribunal.

 

By what i have read in your thread, i would stick by your guns, if you have told them of your changes then its the councils fault, dont be afraid of going to tribunal, im due at one next week, im going to tell them the truth and provide the evidence needed which should account to an official error and then write off of the overpayment i have received.

 

Hope you get things sorted, if you need any help theres loads of knowledgable people on here to help, keep us informed.

[MissFantastic]

Thanks Big Boss Man, Good luck for your tribunal next week, keep us informed also.

 

Take Care

[angryandy]

Every council has different complaints procedures. By you getting a response by 31st August off a stage 2 complaint sounds to me like they have 10 working days to respond. It doesn't make it a good sign or bad sign just that the councils internal complaints procedure states they have so long to respond.

My complaint with the council is now with the cheif executive and she has until a week monday to reply. It doesn't mean it will be the response i want though!

[MissFantastic]

What happens of they dont reply in the time frame they have set?

[angryandy]

Take the procedure up to the next level.

 

They can write to you to say there will be a delay in their response and they have to give reasons for this. They will have to do this before the deadline though so any correspondence after this is 'late'.

 

If i where you i would phone the council up on the 31st August to see if their is a letter on the system for you and if their is i would go and get it personally. If their is not one there for you i would start writing my other complaint letter and go up through the complaints procedure

[MissFantastic]

Well I received a complaint stage 2 full response today.

They admitted that part of the overpayment is classed as an official error but i apparantly should have reasonably known an overpayment was occuring, therefore it is recoverable, they also admitted it took 6 weeks to process my original change of circumstances letter and this was longer than the council would have liked but it is not considered excessive.

 

As I said before I thought my benefit would be reduced but not stopped altogether so i was not aware of such a significant ovverpayment taking place, and I also think 6 weeks is excessive to not deal with my information. The problem is, is it worth taking it to a stage 3 complaint to the chief executive or is it a waste of my time, I cant believe they can admit they were in part in the wrong but still have the cheek to demand all the overpayment back.

 

If I agree to pay back the first part in installments but not the part they are admitting to official error, will they accept or do i need to take it to stage3?

 

I just feel so drained by it all I dont know if its worth fighting my corner?

Do you think I have a case or should throw in the towel???????

 

Thank you so much for reading.

[installspark]

What a load of balderdash and piffle!!!!!!! (or words to that effect )

 

Where shall I start in ripping the council's reply to shreds????

 

Official error is non recoverable under the Housing Benefit Regulations 2006

 

Recoverable overpayments

100

- (1) Any overpayment, except one to which paragraph (2) applies, shall be recoverable.

(2) Subject to paragraph (4) this paragraph applies to an overpayment caused by an official error where the claimant or a person acting on his behalf or any other person to whom the payment is made could not, at the time of receipt of the payment or of any notice relating to that payment, reasonably have been expected to realise that it was an overpayment.

(3) In paragraph (2), "overpayment caused by official error" means an overpayment caused by a mistake made whether in the form of an act or omission by—

(a) the relevant authority;

(b) an officer or person acting for that authority;

© an officer of —

(i) the Department for Work and Pensions; or

(ii) Revenue and Customs,

acting as such; or

(d) a person providing services to the Department for Work and Pensions or to the Commissioners for Her Majesty's Revenue and Customs,

where the claimant, a person acting on his behalf or any other person to whom the payment is made, did not cause or materially contribute to that mistake, act or omission.

(4) Where in consequence of an official error, a person has been awarded rent rebate to which he was not entitled or which exceeded the benefit to which he was entitled, upon the award being revised any overpayment of benefit, which remains credited to him by the relevant authority in respect of a period after the date on which the revision took place, shall be recoverable.

 

Para 2 does not apply as the "average" person can not be reasonably expected to work out their benefit entitlement in the event of not receiving a revised benefit notification. Para 4 does apply as any overpayment caused by official error before the date of revision is not recoverable.

 

As for the council stating that 6 weeks to process the notification of change of circumstances, well.......

 

A council has 14 days, or as soon as reasonably practcable, to make a decision on a claim from when they were notified and all relevant documentation received, this is prescribed in the Housing Benefit Regulations 2006

 

Decisions by a relevant authority

 

89.

—(1) Unless provided otherwise by these Regulations, any matter required to be determined under these Regulations shall be determined in the first instance by the relevant authority.

(2) The relevant authority shall make a decision on each claim within 14 days of the provisions of regulations 83 and 86 being satisfied or as soon as reasonably practicable thereafter.

(3) Without prejudice to the generality of the foregoing provisions of this regulation, in a case where a person—

• (a) made the notification specified in paragraph 2 of Schedule 7 within 14 days from the day immediately after the day on which his entitlement to income support or an income-based jobseeker's allowance ceased ("the appropriate day") and is treated as having claimed an extended payment under regulation 72(2); and
  
  (b) has made a claim, which meets the requirements of regulation 83(1), (6) and (9), within 14 days of the appropriate day,
   
  
  

the relevant authority shall give priority to that claim over other claims which do not fall within the provisions of this paragraph.

Notification of decisions

90.

—(1) An authority shall notify in writing any person affected by a decision made by it under these Regulations—

 

• (a) in the case of a decision on a claim, forthwith or as soon as reasonably practicable thereafter;
  (b) in any other case, within 14 days of that decision or as soon as reasonably practicable thereafter,
  
  
  

and every notification shall include a statement as to the matters set out in Schedule 9.

(2) A person affected to whom an authority sends or delivers a notification of decision may, by notice in writing signed by him, request the authority to provide a written statement setting out the reasons for its decision on any matter set out in the notice.

(3) For the purposes of paragraph (2), where a person affected who requests a written statement is not a natural person, the notice in writing referred to in that paragraph shall be signed by a person over the age of 18 who is authorised to act on that person's behalf.

(4) The written statement referred to in paragraph (2) shall be sent to the person requesting it within 14 days or as soon as is reasonably practical thereafter.

A period of 6 weeks cannot be seen to be reasonable; the council had the opportunity to suspend the claim form the start of the benefit week following your notification of the change of circumstances.

 

You need to write to the council stating that you disagree with their revised decision and request that the appeal be forwarded to Appeals Tribunal for a final, independent decision.

[MissFantastic]

You are a star thank you so much,I feel a bit more confident now in taking it to a stage 3 complaint with the info you have provided, a million thank you's, I 'll keep you updated.

 

Thankyou

[installspark]

Just make sure you tell the council that it is both a formal complaint and appeal.

 

It would also support your case if you directly quoted the relevant Housing Benefit regulations in your letter as then there can be no grounds for misinterpretation. Most councils, from experience, do not fully understand the regulations and how they are to be interpreted as they are statute law.

 

If you need any help in drafting your letter we will help.

[angryandy]

Told you Installspark was the man to speak to. Good stuff Installspark!!!!

[Zamzara]

Para 2 does not apply as the "average" person can not be reasonably expected to work out their benefit entitlement in the event of not receiving a revised benefit notification.

 

That's a bit of a leap. It depends on the nature of the error, and how well the council explained the calculation in their decision notice.

 

There was a commissioners decision where an error in the claiman't income was held to be something the claimant should have spotted in the decision notice, and therefore they could reasonably have known that some overpayment was occurring.

 

Other cases where the error was part of the calculation process, or where the decision was poorly explained have been held non-recoverable.

[MissFantastic]

You are correct AngryAndy, Installspark is certainly the man, but so are you, I am so grateful for all your advice and inspiration, it can be very intimidating when you are dealing with big organisations and the support from people like yourselves is so valuble.

I have emailed my letter and will send an actual copy also, then i guess its another 10 day wait for the chief exec to make a decision, i'll keep you posted.

 

Thanks again.

[Emma1973]

Are we talking an overpayment of nearly a £1000 relating to that 2 month period, or does that £1000 cover a much longer period?

[Surfer01]

We took on out local council on a benefit overpayment and won as they had made a very "official" mistake. It pays to do things in person and to always get signatures for letters sent to them. Unfortunately on numerous occasions these benefits documents are worded in such a way that it is almost impossible for any reasonable person to realise that an overpayment may be incurring.

[angryandy]

Hi again

 

I wouldn't bother sending the letter, i would take it to your local council office and get it scanned into the system as that way they can't delay the process. What i mean by this is when you send them a letter or even hand one in to the council personally they will not process it for 4 or 5 days therefore delaying the procedure.

 

However if you take it down yourself and wait to see one of the advisors they can scan it onto the system for you and the time they have to respond starts from then. Hope you get that... Make sure you get a reciept off them as well to prove you had it scanned in. Again goodluck and keep us informed!!

[MissFantastic]

Hello All,

 

I know its been a long time, happy new year to you all!

 

Just letting you know I failed miserably at getting any justice done, the chief executive replied and admitted official error but i still have to pay it back.

 

I just wanted to thank you all so much for your help anyway, it was much needed support at the time.

 

Many Thanks xxx

[installspark]

Just letting you know I failed miserably at getting any justice done, the chief executive replied and admitted official error but i still have to pay it back.

 

In my opinion the overpayment is unrecoverable due to the time taken to process the change of circumstances; had the council done this within the statutory 14 days there would have been little, if any, overpayment. The council had the opportunity to suspend the claim whilst they processed the change and yet they chose not to.

 

As you have now received the final reply from the council's chief executive you are now able to take this matter to the Local Government Ombudsman who will make the final decision.

 

Details of how to make a complaint to the Ombudsman can be found here

 

Do not give up yet!!!