How far back can overpaid Housing Benefit be reclaimed from Landlords?

by Readers Question

15:11 PM, 29th October 2013
About 5 years ago

How far back can overpaid Housing Benefit be reclaimed from Landlords?

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How far back can overpaid Housing Benefit be reclaimed from Landlords?

I am looking for confirmation of the legislation regarding reclaiming Housing Benefit overpaid directly to a private landlord. Is it true that if a council decides that an overpayment of Housing Benefit has been made they have up to 6 years to reclaim this money?

The tenant in question had a backdated Housing Benefit payment of circa £1800 made in 2010. We are not clear on the reason for the re-assessment and why this backdated payment was made by the HB department.

The tenant remains in one of our properties. We have previously had a situation where a tenant received a backdated payment of HB, we refunded the tenant this amount and they subsequently left our property. After this the HB department wrote to us and explained that the backdate was incorrect and they re-claimed the money from us. We at that point had no recourse to collect the money from our former tenant as we could not trace them.

As a result I want to be clear on exactly what powers HB department have to reclaim incorrect payments and specifically if there is a time limit which they must adhere to. My housing officer believes they have this option for up to 6 years from the payment but this seems prohibitive to me.

Any advice would be much appreciated.

JuliaHousing benefit



Comments

Mark Alexander

15:20 PM, 29th October 2013
About 5 years ago

Hi Julia

What is the basis for the reclaim?

Is it "reasonable" for you to have known that the tenant was not entitled to the benefits?
.

Neil Patterson

15:20 PM, 29th October 2013
About 5 years ago

Hi Julia,

After we received your readers question I started to do some "simple" research and got sucked into 100s of pages of The Department for Work and Pensions guide to Councils regarding over payments!

This is quite a complex/lengthy area and I found no definitive statement on how long back this can be reclaimed.

It does say that it can be written off and not collected by the council if:
1) the amount is too small to be economically viable to reclaim
2) the amount is very unlikely to be reclaimed
3) reclaiming could cause severe financial hardship
No mention of time though

Obviously in a case that involved fraud (not this example) there would be no time limit.

If you wish to have a look yourself the link is https://www.gov.uk/government/publications/housing-benefit-and-council-tax-benefit-overpayments-guide

I am hoping someone with a working knowledge of this area can help answer your question more fully.

Bill Irvine

16:19 PM, 29th October 2013
About 5 years ago

Julia,

There is no time limit in relation to HB/LHA Overpayments. Based on the facts provided the payment that is being questioned appears to be the £1800?

The first question to be addressed is whether in fact there has been an Overpayments and who caused it?

Secondly, who was the £1800 paid to? The tenant, or you the landlord?

If the money was paid directly to the tenant, it is solely the tenant who can be held culpable for any subsequent repayment.

Contrastingly, if the money has been paid to you then it is possible for the Council to recover from you but it must demonstrate there are legitimate grounds for doing so. i.e. you in some way contributed to the overpayment or could reasonably have known the payment was indeed an overpayment, If the sole cause of the OP was the tenant's misrepresentation or failure to report a change in his/her circumstances, then it is to the tenant the council should seek recovery.

The law changed in April 2006 and was subsequently clarified further in 2009. There are also a series of Upper Tier tribunal decisions which are supportive of the landlords position. Much depends on the facts of the case when deciding which parts of the 2006 regulations and UT judgements apply.

In recent weeks I've represented in some large Overpayment cases (£22k 7 £10.8K), where recovery was being pursued against the landlord, rather than the tenant. In each case I was able to persuade the tribunal that the landlord should be exonerated from any blame and culpability.

In my experience, most HB/LHA overpayments are caused by the neglect/oversight of tenants but councils often pursue the landlord as it's easier to recover the sum and secure the 40% subsidy bonus paid to councils by the DWP. Each year there is £1.3 Billion deemed recoverable HB/LHA overpayments so it's clearly ons of the biggest issues for PRS landords. Dealt with properly however, there is not much to worry about for landlords if they've played their part in the process correctly.

You'll find more about HB Overpayments by examining my website http://www.hbadvice.co.uk (articles section). Alternatively, look for the link to the DWP's HB Overpayment Guidance Manual or CPAG's HB/CTB Legislation used by all the First & Upper-tier Judges.

Bill Irvine
HB Advice and Advocacy &
Universal credit Advice

http://www.hbadvice.co.uk or http://www.ucadvice.co.uk

Reader

20:19 PM, 29th October 2013
About 5 years ago

First rate advice Bill one of the national landlord associations could not answer the points you covered when I asked them some while ago. I'm going to frame it!

Six figure LHA occasionally brings problems.

Landlord Information Network Ltd gives good advice on benefit issues too.

Neil Patterson

17:16 PM, 31st October 2013
About 5 years ago

I think this is an area you really need some practical experience in that Bill obviously has.

Mick Roberts

7:45 AM, 1st November 2013
About 5 years ago

Bill just about says it all.
I've had HB reclaim from about 2 years ago.
Standard text u can use is:
This overpayment is something that at the time of the receipt of the payment, I could have not have expected to realise that it was an Overpayment.
That works for a lot of requests.
I cannot be reasonably expected to know about an overpayment that was happening.
Each one is different though. From what you've said above, I reckon I could win that if they paid u by accident.
On a situation like u explain, for the future, & I do do this.
1. If tenant is paying a top up, I tell them I am using this money for future top up, so they han't got to pay for so many months.
Or, if they insist it's their's NOW, I tell HB I'm giving them the money back & they can give it tenant, as I don't want the paperwork when tenant has already paid me.

Bill Irvine

10:20 AM, 1st November 2013
About 5 years ago

Reply to the comment left by "Mick Roberts" at "01/11/2013 - 07:45":

Mick,

I would have to disagree with the idea of using a standard text when challenging an HB overpayment. As you say, later in your post "each one is different though" and should therefor be dealt on a case-by-case basis.

The best course of action is to follow the advice in my first post:

1. Establish if there has been an overpayment and then determine what caused it to happen.
2. Once you know the answers to 1. prepare a statement of the facts; apply the facts to the relevant section of the law; and use caselaw to reinforce the point.
3. If you can't do this yourself seek professional assistance from specialists
4. Don't leave anything to chance or over-confidence from prior successes!

I have just dealt with an Overpayment in the past week involving £3000. The case is quite typical of the ones I usually deal with, where the tenant is found to be claiming HB for two different properties, in different districts.

Normally the overlap is picked up by the LA's but usually months elapse before its discovered. in this case, the overpayment was for a period of 8 months. My landlord client and his solicitor had argued a) the tenant was still occupying his property; b)was liable for the rent in terms of the TA; and that HB should continue to be paid at his property as the tenant had retained the keys. Despite the challenge, nearly 7 months later, the Council started the process of recovery. The landlord frustrated by what was happening was referred to me by the RLA.

When I examined all the exchanges I discovered the landlord and solicitor had not actually addressed the reasons for the Overpayment and the question of the landlord's alleged culpability. It took me a few e-mails to sort the problem that could have been achieved much earlier if the landlord had focused on the correct question and points of law. In this case, two UT judgements very similar in context swung things in his favour and avoided the need for a tribunal. I had also involved the Director of Housing Benefit & Revenues rather than writing to generic e-mail addresses.

I have a number of clients who challenge small OP's, usually less than £1000 themselves, having firstly been tutored by me on the topic. However, when the figure rises above the £1000 they invariably refer to me as I normally work on a No win, No fee, basis so it's not worth the risk.

Landlords have rights in OP cases. Used properly they will invariably enable you to avoid the need for repayment. On the other hand, used in a casual fashion, they can easily backfire, especially where the local authority in question has professionai appeals representation.

Bill Irvine
HB Advice & Advocacy &
Universal Credit Advice

http://www.ucadvice.co.uk & http://www.hbadvice.co.uk

Mark Alexander

12:31 PM, 1st November 2013
About 5 years ago

Reply to the comment left by "Bill Irvine" at "01/11/2013 - 10:20":

Yet another superb post Bill, it really is a pleasure to have you here. We really must discuss you becoming a site sponsor on a similar basis to others in the Legal section of the website. I will call you to discuss this.
.

Bill Irvine

13:08 PM, 1st November 2013
About 5 years ago

Hi Mark,

Good to speak to you earlier on the phone. I appreciate your kind comments about my post and will continue to look in now and again and contribute when I feel my contribution will assist the thread.

Following yesterday's DWP leaked report on Universal Credit http://www.ucadvice.co.uk/housing-associations/2013/11/universal-credit---lets-scrap-the-current-plan-start-again-and-to-hell-with-costs it's highly likely LHA will continue to operate way beyond the planned 2017 deadline, so there's much merit in landlords keeping themselves abreast of the law and caselaw. Knowing this will help maximise their income from LHA and minimise the problems sometimes encountered through ignorance or over-zealousness on the part of councils operating the scheme.

For those interested I'm running LHA briefing sessions for landlords in December 2013 and January 2014 - details: http://www.rla.org.uk/landlord/courses/local_housing_allowance.shtml)

We've already run similar sessions in dfferent parts of the UK. They were all well attended but limited to no more than 25 delegates as I like to encourage participation and use loads of examples to explain the different areas of law that often are misunderstood, causing problems in the process for tenants and landlords alike.

I would encourage your members to speak to RLA to see if there's some suitable venues within easy travelling to their own area. RLA's details are on the link above.

Bill Irvine
HB Advice & Advocacy &
Universal Credit Advice

http://www.ucadvice.co.uk and http://www.hbadvice.co.uk

Tony McVey

20:38 PM, 1st November 2013
About 5 years ago

Can Bill confirm that recovery of HB is not
subject to the normal statute of limitation
rules.

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