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

by Readers Question

15:11 PM, 29th October 2013
About 7 years ago

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

Make Text Bigger
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

Mick Roberts

9:32 AM, 5th November 2013
About 7 years ago

I agree as a blanket rule shun’t be using standard text, but unless these guys are gonna come to u or me, the standard text is gonna be better than what they have ‘not’ used.
You’re obviously much more of an expert than me having defended many ‘innocent inexperienced’ HB Landlords for their appeal. I normally don’t have to go as far as appeal.
I’ve done approx 100 overpayments in approx 15 years, & I guess, I’ve only lost 2 or 3, & the majority are won on the standard text, with a full page letter from me regarding the surrounding issues.
And I reckon in that case above, he’d have had a good case using the text.
But yes, using standard text willy nilly is not advisable, I guess I’m just used to me putting it in my appeal letters with my other bits thrown in.
Nice to hear that LHA is being extended.

Bill irvine

11:16 AM, 5th November 2013
About 7 years ago

Tony,

The statute of limitation doesn't apply.

Mick,

You start off your latest post by agreeing you shouldn't use "standard text" and then proceed to evangelise about just how effective it is to use one?

As you're no doubt aware, the legal test in HB overpayments is not always the same. For example, "official" error overpayments have a different test to situations where the tenant vacates without notifying both you and the council. In other situations the OP arises from a dispute over the facts and the way the HB was calculated e.g joint tenants etc.

Surely, there can be no standard text for these different scenarios?

Lastly, on the question of "extension" there has been no government announcement to that effect, I'm just joining up the dots, following the leaked report suggesting UC will not be delivered by 2017!

Bill Irvine
HB Advice & Advocacy &
Universal Credit

Mick Roberts

16:50 PM, 6th November 2013
About 7 years ago

Crikey, I din’t realise this is a forum where we try to pick fault with other peoples comments, who are trying to help others with less experience-I thought this was a forum where we’re here to help Landlords?
I’m always gonna be a loser on commenting with people who’s way with words are better than mine.
I don’t get time to go reading back mine & other comments & I was trying to agree with u slightly ha ha, but here’s how I see it from MY experience.
I said as a blanket rule shun’t in EVERY case, but that ‘standard’ text DOES work in a lot of cases. Maybe not in all those that you defend that run into the £1000’s & tens of £1000’s, but from my experience of a HB Landlord in Nottingham, & houses in 5 different LA’s within Notts’, that ‘standard’ text does work. And if some Landlords can put that in their letter somewhere-I do it in bold writing towards the end, for me it sticks volumes with HB appeals staff if the Landlord genuinely din’t have a clue an overpayment was happening.
I picked that text up years ago, as apparently it was straight from HB’s mouth, & it is something HB appeals cannot ignore, some explanation may be found here: https://www.google.co.uk/#q=This+overpayment+is+something+that+at+the+time+of+the+receipt+of+the+payment%2C+I+could+have+not+have+expected+to+realise+that+it+was+an+Overpayment.
I know it’s been effective for me & effective for some Landlord mates I’ve helped with appeals. So if putting that text within my letter normally always wins my appeal, I do have to recommend it-If it applies to the reason of the recovery of overpayment.
I still would say if in doubt & you’ve got nothing to lose & Landlords han’t got an expert like Bill on the end of the phone, I would say slam that text in your letter if it applies to your situation. I hear that many Landlords panicking about paying HB money back when I see it as simple case of if u din’t know, u don’t pay-Generally! Not every case, but on a law of averages.

Yes official error’s are different & I han’t got time to go into them.
When tenant vacates without telling me, I have to say that standard text is very good in that situation.
And here’s the reply I get back from HB staff when that text is used: ‘As you could not have been aware of this change, any overpayment will be recovered directly from the tenant.’

I deal with a lot of these tenants who get their new house, don’t tell me the exact date, decorate etc., then few months later HB says ‘Mick, u owe us some money back ‘cause they signed for new house such & such date.

Bill irvine

18:14 PM, 6th November 2013
About 7 years ago

Mick,
I’m sorry if you believe I’m simply trying to “pick fault” - that’s simply not the case.

You’re an experienced landlord, with many years’ experience dealing in LHA, offering advice on a public forum (i.e. Property118) aimed at landlords/agents on a critically important topic (£1.3 Billion a year, no less).

I don’t doubt you’re quite genuine in believing a “standard text” works when responding to HB Overpayment demands. But as you say in the first paragraph of your last post, the purpose of posting is to “help others with less experience”.

With exactly that in mind; I recommended in my earlier posts, and before you commented:

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!

Essentially, I’m recommending that any landlord/agent that receives such a demand, firstly needs to be careful and a bit cautious about how they respond. Secondly, I’m pointing out there are a number of stages in the process and legal tests to be considered. Finally, I’m recommending that when responding they must relate the facts of the case to the particular legal test in question and use any related caselaw to support their argument. If they don’t believe they have the knowledge and confidence to deal with these issues themselves they should also seek professional help.

In my view, following this course of action (rather than a standard text) is more likely to achieve success and this surely must be the objective of the exercise!

Lastly, your photo suggests you’re a big fellow with broad shoulders; obviously you have a sensitive side. LOL!

Bill Irvine
HB Advice & Advocacy &
Universal Credit Advice

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

Mick Roberts

18:42 PM, 6th November 2013
About 7 years ago

I han't got broad shoulders, I'm a slim guy, that's why I'm always doing silly photo's-To make meself look bigger than I am ha ha.

And hopefully, should the worst happen & I get a big 3-10k overpayment where HB may fight it a lot harder than my normal run of the mill ones, I shall be looking u up & asking for your ammunition, when they start quoting regs to me & bamboozling me. If you'll still have me Bill lol.

Bill irvine

6:26 AM, 7th November 2013
About 7 years ago

Reply to the comment left by "Mick Roberts" at "06/11/2013 - 18:42":

Mick,

How could I possibly refuse to help such a poor wee skinny soul in desperate need. LOL!

Bill

Tony McVey

10:07 AM, 7th November 2013
About 7 years ago

Bill. What is your authority for saying that the
Statute of limitations does not apply?

Bill irvine

11:08 AM, 7th November 2013
About 7 years ago

Tony,

Firstly, in the case that started the thread it was no more than 4 years ago.

Secondly, on a more general basis, there is no time constraints when considering the question of how far back an overpayment can go. Is it quite possible for a LA to go back more than 10 years from the date the OP is discovered. It must be able to demonstrate through evidence that it can justify its actions. Many of the large overpayments, caused by fraudulent action, go back 5-10 years and more.

Thirdly, the Statute of Limitation doesn't apply to most types of recovery action (e.g. deductions from ongoing benefit, recovery via "blameless tenants" etc. These can all be pursued simply by issue of the HB Overpayment notification, assuming that is, it complies with the legislative requirements set out in a schedule to the HB regulations.

Where the Statute does apply is where recovery is being sought via the courts but it has, as you'll no doubt recognise, very limited affect. See extract below from DWP Guidance.

DWP Guidance

"Courts and civil proceedings

Time limits for recovering overpayments

England and Wales

7.00 In England and Wales, there are no time limits for recovering overpaid HB and excess CTB, except when court action is required. 7.01 Once an overpayment debt is created between an LA and the person it is recoverable from, an LA in England or Wales may choose to pursue the debt in the County Court. However, such action must be brought within six years, as per The Limitation Act 1980 (s9). 7.02 The time limit is applicable from the date the decision was made by the LA. For overpayments caused by a mistake or error, including fraudulent overpayments, the time limit is applicable from the date the mistake or error was discovered by the LA. This applies to both overpaid HB and excess CTB.7.03 It should also be noted that the time limit starts again when there is later relevant acknowledgement by the debtor of that debt. An example may be in the form of a payment made against the debt, or a letter from the debtor admitting the debt, such as enquiring about the amount outstanding.7.04 The Limitation Act 1980 does not apply to recovery other than by bringing an action in the courts.7.05 It is important to remember that in England and Wales, overpayments being recovered using methods other than court action, can be recovered at any time regardless of how old they are. However, in cases when the overpayment covers a long period of time, LAs may find it difficult to obtain the information and evidence to make and support their calculations and therefore they may be unable to ‘prove’ the overpayment existed. The same may apply to ‘old’ overpayments that have been left for some time (unable to be recovered), as the information and evidence that supported their calculation may no longer be available!

I hope this helps to explain the situation.

Bill Irvine
HB Advice & Advocacy
Universal Credit Advice

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

Tony McVey

11:36 AM, 7th November 2013
About 7 years ago

Reply to the comment left by "Bill Irvine" at "07/11/2013 - 11:08":

Bill
Thank you for detailled answer which confirms the six year rule. Your initial comments suggested that there was no time limit at all. Obviously the rule only applies to court action and this is what I was seeking to confirm. In this regard recoovery of HB is no different than any other debt

Bill irvine

17:10 PM, 7th November 2013
About 7 years ago

Reply to the comment left by "Tony McVey" at "07/11/2013 - 11:36":

Tony,

Just to be clear what I was saying. I was responding to the question posed by the author of the intiating post.

The Q was "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?

In answer to this Q, there is no time limit, nor does the statute of limitation apply. As I explained, the council has the right to recover debt for as many years as it can produce evidence to support, so potentially could be way beyond 6 years.

Where the statute does come into play is where, let's say, a council makes a decision in 2005, that an overpayment is recoverable; notifies the landlord in line with the determination notice statute, and then fails to make any effort to recover, using one of the many options (other than court action) and there is now no longer the ability to offset against an ongoing award or other HB paid to the same landlord. If any of these options still exist then recovery can be made because the statute of limitation has no effect.

So in this respect, I would have to disagree with your suggestion "In this regard recovery of HB is no different than any other debt". It is very different in that recovery can be effected by various means without the need for a court order.

Obviously, if no other option exists and court action is the only form of recourse, any legal action for recovery would be time barred by the statute as oyu suggest.

I trust this and my previous post clarifies the position.

Bill irvine
HB Advice & Advocacy
Universal Credit Advice

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

1 2 3 4

Leave Comments

Please Log-In OR Become a member to reply to comments or subscribe to new comment notifications.

Forgotten your password?

OR

BECOME A MEMBER

Build, Build, Build! Profit From PD Rights

The Landlords Union

Become a Member, it's FREE

Our mission is to facilitate the sharing of best practice amongst UK landlords, tenants and letting agents

Learn More