DSS Over-payments – Readers Advice Request

DSS Over-payments – Readers Advice Request

21:32 PM, 13th August 2012, About 12 years ago 26

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As there are so many experts in the area of DSS over-payments (or LHA as it’s now called) I am going to open up this topic for our readers to provide Eve with the advice she has requested in her email to me which I’ve copied below ….

Hi there Mark,

My sister-in-law, sent me your link a while back, (she’s not in property by the way), but we are and I’ve been perusing your articles ever since and have found your posts to be both interesting and useful.

I am today taking you up on your offer of advice, if I may.  

I had a tenant from the DSS who left half-way through her 12 month AST with me, giving me a dubious reason.  Anyway, the DSS continued to pay the rental payment the following month, but then asked back for it.  I contacted the RLA, as I am a member and was advised that I should insist that they indeed owed me the entirety of the 12 month rental and any expense incurred in getting another tenant.  Is this correct?  I have gone down this road with them, as my feelings are that had the shoe been on the other foot and I had requested my property back before term, they would have made her stay until I had gotten eviction notices and baliffs to remove her.  Anyway, I wrote to them, to that effect, but received no reply other than them requesting the £1,700 pounds they claim is an “overpayment”.  Any suggestions as to who or what is correct would be gladly received.



If you have a question regarding anything landlord related, please feel free to drop me an email as eve has done. I can’t promise to turn it into an article but if I do I can assure you that I will protect your anonymity. I’m happy to share my experiences and strategies and refer you to my professional advisers without charge. My motives for this are explained here. My email address is mark@property118.com

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Industry Observer

17:15 PM, 14th August 2012, About 12 years ago

I think many of the posts are a bit wide of the mark here. Even if you can prove it was actually an administrative error on the part of the LHA office you'll have a devil of a job hanging onto the money. You say the money was paid direct to you, so presumably you must have signed the infamous clawback form for the LHA Office, which means you have even less chance of hanging onto it even if the LHA did make a mistake.
All the comments about maybe winning if you didn't know the tenant had left amaze me - any Landlord would say that wouldn't they would be the LHA office's line. Anyone posting here who has beaten the LHA with that line is either a very persuasive advocate or is lucky to be dealing with a pussy cat of an LHA Office.
They are not interested in any reasons or excuses they have paid out money to which someone was not entitled, in this case the tenant on your property, but the money had been paid to you. They can also I think come back for up to 6 years so don't necessarily think a win is a win until they have had their annual audit!!
Best advice is pursue the tenant but usually they don't have two penmnies to rub together and the LHA offise sure as hell isn't going to give you their current address.
£1700 overpayment - you sure it was only one month's rent Eve it seems an awful lot to me.

Mary Latham

17:59 PM, 14th August 2012, About 12 years ago

Housing Benefit Regulations 2006, Part 13, Section 101(2) states that, where the overpayment arose as a consequence of a misrepresentation, or failure to disclose a material fact by, or on behalf of the claimant, the recovery should take place from the person who misrepresented or failed to disclose that material fact.
Source http://www.legislation.gov.uk/uksi/2006/213/part/13/made
This point was further clarified in the case of The Secretary of State for Work and Pensions v Chiltern District Council.
Source http://www.dwp.gov.uk/docs/nechap32.pdf

Industry Observer

19:21 PM, 14th August 2012, About 12 years ago

Big word "should" Mary.
Are you suggesting that the LHA office knowing they have paid the money to Eve for a period when the tenant was not even in occupancy should then pursue a tenant on LHA for £1700?
Remember too that in this case as posted by someone else this tenant is almost certainly still on LHA but in another property. So the tenant will have disclosed the fact that they were not going to be at Eve's property by applying to have their LHA switched to another property.
Even if that did not happen in this case there are lots of occasions when this happens and as a result the Landlord never receives that last month's rent because it is paid in arrear - and the tenant has moved on, usually without notice because they have to accept alternative social housing offers quickly.
Perhaps we can discuss the Directive sent out by John Prescott years ago that told (told) Housing Departments they SHOULD not wait until a tenant was actually homeless before they rehoused them because of the mandatory nature of

Mary Latham

19:48 PM, 14th August 2012, About 12 years ago

I am not suggesting anything I.O. My recent post was for information. I gave my opinion of this case in an earlier post when I said "In my opinion you will not get your rent from the local authority." and I explained why.
If you want to discuss the Directive sent by John Prescott or anything else please lead and I will follow. I'm always up for a discussion but not for an argument its bad for my soul.

Paul Baldry

21:28 PM, 14th August 2012, About 12 years ago

I have in more than one occation won a battle over overpayment using an 'housing benefit indemnity form' I get it signed at the tenancy signing that which says the tenant indemnify the LL from all claims and would deal directly with the council for any over payments. The first time they kept asking for the original (so it could be lost - I think) after the first time they just accepted it haha. So funny hearing them on the phone. Haven't needed to use it for quite a while and wont help in this occation but fore warned if you take a dss tenant again.

0:01 AM, 15th August 2012, About 12 years ago

I absolutely agree with you with everything you've said; I can't believe the naivety of LL in wishing to receive direct LHA rent payments.
They clearly don't seem to appreciate they could be heading for an almighty fall.
Your worst case scenario in going back 6 years was not something I was aware of.
It makes me even more justified in my view NEVER to accept direct LHA/UC payment ,
UNLESS I am in the process of evicting the tenant.
To be in the situation where possibly 6 years of rental receipts could be clawed back just doesn't bear thinking about.
If such a situation ever arose with me I would be bankrupted.
Lots of little LL would.
The big boys can take the risk as they have funds to cover such potential massive clawbacks.
These council depts will use all means to recover LHA if they think there is any hint of incorrect claims.
I had a colleague of mine who had £13000 clawed back from him.
He has about 13 properties all let to LHA tenants.
I am not sure whether he changed the method by which he received LHA!!
I know some LL seem to think they can appeal these clawbacks and I know they sometimes succeed.
Me I require absolute certainty that any rent I receive stays received, never to return from whence it came.
Receipt, hopefully, from the tenant is the ONLY way to guarantee that.I don't know how some of these brave LL sleep at night in accepting direct payment.
They must have substantial funds in their bank accounts, unlike me.

0:22 AM, 15th August 2012, About 12 years ago

I think you highlight the issue that few LL seem to understand or appreciate.
That is benefit follows the person wherever and whenever they go.
Housing depts are not the slightest bit interested in breaches of contracts etc between the tenant and whoever.
All they are interested in is discharging their responsibilities as far as the law is concerned in supply due benefits to a claimant.
So even if a tenant doesn't pay the LHA over to the LL and leaves prematurely and then manages to find another LL to take them on, that is ALL the council housing dept is interested in.
Of course LL find this state of affairs extremely galling and it IS.
That however is the way things are presently.
Even with the advent of UC no change to things will occur as far as the council housing depts are concerned or rather the DWP.
Does this mean you might get some more help as DWP will be taking over responsibilty for UC or will it mean sacking the underused Housing dept staff!!
The only way of ensuring that the LL will receive UC housing benefit will be to use a CU.
Even then the tenant can still cancel the arrangement, though as Mary Latham has pointedly brought attention to this has to be 28 days notice and the CU advises the LL of cancellation of an arrangement.
This at least gives the LL a heads up on possible changes with his tenant.
I am not sure whether it would be deemed an unfair term; but I can see lots of LL inserting a term in the AST that a tenant in receipt of ANY LHA or RENT UC must use a CU and ringfence the SO rent payment to the LL.
This would also be a requirement for any LL taking on any LHA/UC tenant.

Mark Alexander - Founder of Property118

7:22 AM, 15th August 2012, About 12 years ago

Again, not the answer to Eve's problem but one for the future. A home owner guarantor significantly minimises risk as there is always somebody with assets to go after in the event of a problem. Take one wherever possible, even if it means taking a slightly lower rent to find the right tenant. Whether your tenant is on benefits now or ends up on benefits on the future a home owner guarantor provides landlords with peace of mind.

9:47 AM, 15th August 2012, About 12 years ago

Yes please, i'd like to discuss the John prescott directive. My council advises my tenants to stay put after the expiry of section 21 notices or else they won't get any help from them. I feel that this must be illegal, as my council is inducing my tenants to break their contracts and interfering in a legal contract between 2 people and causing me loss. This has happened a number of times and I always half heartedly complain, but this time I have made a formal complaint and have a meeting on Monday. How do other Landlords feel about this? Is it wrong? Is it illegal? Thanks in advance

11:32 AM, 15th August 2012, About 12 years ago

I am a specialist in Housing Benefit & LHA tenants, Mark has my direct details if he needs to clarify anything. You can get away with paying back the overpayment in certain circumstances, of which I have the text and answers for, but what u say above (I haven't read all the replies below), u have to pay back the period of Housing Benefit you received from when u knew the tenant was leaving/left. Everything after that point is not yours, HB say they will only pay up the point that she left, & u argue up to the date that U KNEW SHE HAD GONE. I have heard before, HB has to pay as per tenancy, unfortunately that is wrong (& I have tried that reason in the past), it doesn't wash with the HB dept.

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