LA & HB overpayment due to ESA woes! Legal? Possibly not!

[Bazooka Boo]

On the back of my recent success with the DWP and the three year battle to be placed in the SG and not WRAG, it now appears my LA has been economical with the truth also!!

 

Long and tall of it:

Migrated from IB to ESA, start of three year fight.......

 

During which time I went from zero points, to qualifying for WRAG, I received about 12 months back pay for the time I was getting the 'appeal rate ESA', and clearly the LA increased the payment of HB to me to try and cover what the DWP weren't paying me.

 

And we're not talking vast amounts of dollar here either, it was in the region of £30 a week toward my £110+ a week rent...anyhow...

 

When I received this 'backpay' of ESA, the LA got intouch and told me I had been overpaid HB due to the 'backpay' of ESA........confused, I blooming was!

 

So because I was given this backpay, to correct the DWP's mistake, it put me in arrears with my LA in that they had 'overpaid' me HB... their argument being that had I been getting the correct amount of ESA at the time, then they would have paid me less HB, and because the DWP backdated the ESA claim, they have every right to demand I repay them (the LA) what they 'wouldn't have paid me'..... make sense?

 

And as I am due to receive almost 2 and a half years worth of backpay from the DWP, as I have now been placed in the support group, I can see that the LA is going to claim that I have to repay the last two and a half years worth of HB that they have been paying me....

 

estellynn has told me on my other thread, that HB isn't affected due to backpay of ESA..

 

I'm on a roll, so I am all up for a damn good scrap with my Tory led Council, any links to what I can throw at them this week?

[id6052]

The relevant HB reg does not really help you.

 

HB reg 31(2) states that: -

 

The period over which any benefit under the benefit Acts is to be taken into account shall be the period in respect of which that benefit is payable.

[mikeymack2002]

With the HB side of things being in either the WRAG or the support group would normally mean you get the same amount of HB. If the LA are starting the ball rolling with this rest assured they may also go after you for any CT as well.

 

 

With the back pay you may need to be extremely careful as to how much capital you will have in the end. As you know a claimant can only have a certain amount of savings before losing benefits. Not only that it would pay to make sure the amount you receive is correctly declared just in case they say you have not told them about the money they have paid you back in the first place, strange I know but please bear that in mind. It looks like the DWP and LA have their fingers in your life big time.

 

 

From what you have said and done so far it would appear that this new mistake is not of your making and is it non recoverable, due to the original error of facts by the DWP. How could you have known that this would be going on so long? With this in mind I believe that you have correctly notified the LA as to the correct money you have been paid at the time you made the claim. How is it your fault that DWP made an error? If you had the correct amount of money in the first place the LA would have made the right award to you in the first place. Just because you have had your claim reassessed now does not mean the LA has the right to reclaim the overpayment. Catch 22 here me thinks?

 

 

Please have a look here https://www.gov.uk/government/publications/housing-benefit-overpayments-guide

 

 

Then start at guide one, the 1st PDF and see 1.20 page 3 bullet 6

 

 

In guide 2, part 2.132 on page 18 onwards

 

 

This maybe of interest to you the list goes on, sorry to say it means a lot of homework for you. As there are 7 parts to this document and will mean you have to read all of them

 

 

Once you are done with them sadly the following may be of use as well see here published 16/02/205. This link is for the good practise guide issued to all LA's

https://www.gov.uk/government/publications/housing-benefit-overpayment-recovery-good-practice

[Nystagmite]

Are you receiving any income based ESA? This would entitle you to full HB for your situation.

[estellyn]

I may be confused on this one, I was under the impression that arrears of benefits are treated as capital and disregarded as capital for 12 months. Surely they can't treat the arrears as both capital and as income. Have they changed this in the last few years?

 

http://www.cheshireeast.gov.uk/benefits_housing_council_tax/claiming_benefits/capital_and_income.aspx

[id6052]

Date on which change of circumstance is to take effect

 

HB regulation 79(7) deals with arrears of benefits

 

Without prejudice to paragraph (6), where the change of circumstances is the payment of income, or arrears of income, in respect of a past period, the change of circumstances shall take effect from the first day on which such income, had it been timeously paid in that period at intervals appropriate to that income, would have fallen to be taken into account for the purposes of these Regulations.

[id6052]

Estellyn

 

arrears of most benefits (some such as tax credits/DLA/PIP/HB/CTB/UC/IS/JSA(ib)/ESA(ir) have their own funny rules) are treated as:

 

1. income for the past period that are paid in respect of
   
2. capital from the date of payment going forward
   

 

in effect it converts from 1 to the other - in a similar way as my May salary is treated as income for the month of May, then it would convert to capital in June (if it wasn't already spent on bills)

[id6052]

personally, i think rather than argue against the overpayment, the argument needs to be against recoverability

[id6052]

this recent UT case may be very useful

 

http://www.osscsc.gov.uk/Aspx/view.aspx?id=4493

[estellyn]

id6052, I defer to you in all things housing benefit. I knew that I had never seen a case with HB being recovered following receipt of arrears - obviously my LA followed the earlier decisions cited in the UT decision you posted.

 

To Bazooka Boo, print off the UT decision that id6052 has posted above and send it with a letter as evidence against the overpayment recovery.

 

This is not something that used to happen when I was last a caseworker. I wonder if the LA now have increased recovery targets to meet on HB and are trawling for 'easy' prospects.

[suziebear67]

Im sure when my partner got the WRAG top up it was disregarded for HB but this was 2011.

[Bazooka Boo]

Thank you for all the advice......

 

I'm going to fire off an email to the LA benefits dept and have them look at the decision again,

although this is also part of my formal complaint against the DWP for maladministration and discrimination,

as if they had placed me in the correct category in the first place I would not have been put in arrears with my HB...

 

Nothing is ever simple!

[estellyn]

Yes, the point is that they shouldn't be trying to recover the overpayment - other authorities don't, and the reason being it's not recoverable due to official error.

 

1 An error occurred which you had nothing to do with (the dwp placing you in the wrong esa group)

2 there was no misrepresentation or failure to disclose

3 there was no way you could reasonable have known an overpayment was taking place.

 

Mention these three things and include a copy of UT decision posted earlier and hopefully the LA should see reason that their policy of recovery on these cases is not within the law.

[Bazooka Boo]

I have emailed the LA to ask that this be looked at again, although the 'overpayment' is from Feb 2013 to November 2013,

when I was not in receipt of any benefit, the backdated ESA covered this period, and the council claim that it is a recoverable amount

under HB regs....but don't state which regs they're referring to.

 

Anyhow, I fully expect them to come back with ''your out of time'', but I have extenuating circumstances in that I have always maintained

my objection to them recovering this as it was beyond my control, plus I had bigger fish to fry and was up against the DWP.

 

I'm going to route about and find these HB regs they mention....