Direct Debit not taken in 2010

sheena6864

Hello,

I am the Executor of my mother's estate, who passed a few weeks ago.
She lived in Sheltered Housing for the last seven years of her life. The Housing Association, say she is £216 + in debit, although my mother has never owed anything in her life and never missed a payment. The tenancy started on 31st May 2010. After asking for full rent statement details, it appears that some of the early Direct Debits weren't taken, specifically June 2010 and August 2010 and there were other discrepancies, and although my mother paid what she was asked for, this left a shortfall. I have proof from the bank that the Direct Debit was set up before the due date, and there were funds in my mother's account - so this was the Housing Association (or their agent AllPay) not asking for the money. As a result, my mother has been paying 'in arrears' for seven years. Occasional statements were sent, but there is no correspondence in relation to the missing month. However, in 2013 and again in 2016, the Housing Associate started to take an additional £5 then £6 from her monthly Direct debit - again there was no correspondence, or agreement by my mother for this arrangement. Although the actual amount is not great, I would like to know the legal position for them to recover what is effectively a missing payment from June 2010. Grrr - I guess I am annoyed on my mother's behalf. Thank you and sorry for the long post, Sheena

Cliveman_Pieman

Under the terms of the Direct Debit guarantee, the organisation receiving funds are required to notify you if there is any change in the amount, date or frequency of the payments. If they have taken money they shouldn't, you are entitled to ask the bank to return said funds, and the bank are obliged to do this, and sort the problems out later. In your shoes, I would do this.

Debts are able to be chased for 6 years (5 in Scotland), which would suggest this is outside of the scope for collection now. That said, your situation is complicated by the fact the 6 years can "restart" if you make a payment towards that debt, that could be said to have happened in this case.

In your position I would invoke the DD guarantee with the bank and keep your cards close to your chest. I doubt the HA would do anything, although if the amount we are talking about is thousands perhaps they might?

IAmWales

Cliveman_Pieman wrote: »

Under the terms of the Direct Debit guarantee, the organisation receiving funds are required to notify you if there is any change in the amount, date or frequency of the payments. If they have taken money they shouldn't, you are entitled to ask the bank to return said funds, and the bank are obliged to do this, and sort the problems out later. In your shoes, I would do this.

Debts are able to be chased for 6 years (5 in Scotland), which would suggest this is outside of the scope for collection now. That said, your situation is complicated by the fact the 6 years can "restart" if you make a payment towards that debt, that could be said to have happened in this case.

In your position I would invoke the DD guarantee with the bank and keep your cards close to your chest. I doubt the HA would do anything, although if the amount we are talking about is thousands perhaps they might?

Recalling the payments is just going to result in the estate being further in debt.

The lady's account was in arrears, so the missing payments will actually be from the most recent payments, not 2010. Hence the Limitations Act will not be relevant.

OP are there funds in the estate to pay the arrears? If so, save yourself the stress and pay it. If not, advise the HA of this - you are not personally liable for this.

sheena6864

Thank you so much for helping me clarify this... so I guess the issues / actions are

• Reclaim the additional DD amounts taken from the bank without agreement 12 x £5 + 12 x £6
• Write to the HA and complain about their really shabby practices in dealing with amounts overdue, and clarity in the way they present their information
• Try the Limitations Act (but be mindful that it might not apply in this case)
• Possibly then just pay the amount - it's only £216 (ish) depending on which of their statements we use. The Estate does have the funds, it's only a couple of hundred pounds.

I just feel the HA have taken advantage as they're dealing with elderly people and that makes me mad on principle!

Thank you again

G_M

As iamwales asks: are there funds in the estate to cover this? And how complex is the estate ( eg over the IHT threshold? disparate creditors/debtors? property involved etc)?

having recently wound up my own mother's estate (which was relatively complex) I'd suggest taking the course of least resistance. You don't want additional stress on top of dealing with the estate, and the emotiona loss.

And if this delays HMRC signing off on the tax (because you can't establish the value of the estate), that also delays getting Probate........

But you may feel it's worth a letter to see what response you get.

Best of luck.

sheena6864

Thank you for your reply - I'm sorry to hear about the loss of your mother too.

It's a simple Estate, and there are funds. Will try the letter on principle. Even if it only serves to make the HA more careful / competent in their dealings.

eddddy

A successful indemnity claim under the direct debit guarantee puts the money back in your account - but it doesn't make the debt go away.

The HA can just persue it in other ways - e.g. via the court.


Realistically, the only way you can avoid the debt is by showing that the money was never owed.

(Your argument seems to be that it was owed, but not collected correctly - but that isn't a legal basis for the debt to be nullified.)

Miss_Samantha

It's more than 6 years ago so they can't pursue if you do not voluntarily pay.

eddddy

Miss_Samantha wrote: »

It's more than 6 years ago so they can't pursue if you do not voluntarily pay.

It sounds like the HA are saying that the first 2 payments were missed - therefore, every subsequent payment was 2 months late.

So the current debt is only a few months old.

Miss_Samantha

I think it would be difficult to claim that the Direct Debit they take in a given month is actually not to pay for that month's rent unless there are very specific provisions in the lease.

This is rent in a lease, not an 'account'. Every time rent becomes due a new, separate debt is created.

sheena6864

Hmm very interesting point, thank you.

Yes you're right - each month's DD is specific to that month.
We know that because each April the DD amount increases in line with their rent increases - March in any one year is specific to that rent, and in April changes to the new increased amount, so is date bound. In other words, one month's DD is not 'paying for' earlier arrears.

When I initially queried the debit balance, I was told it was because it was a '5 week month'. Grrr.