10k UC overpayment

peteuk

From my simple mind - 
Op claimed HB at the LHA rate for house A.  Which they moved out of 2 or so years ago. Therefore theres an overpayment as they’ve been claiming for a house they are not living in.

Op failed to declare the move to house B therefore wasn’t claiming HB at the LHA rate until recently. But using the HB from House A to pay House B.  I totally understand it’s an oversight on the Op’s part and given the circumstances totally understandable, but it is on the claimant to update DWP with any change in circumstances.

So as I say in my very simple, analytical mind theres an overpayment, sorry.  

Alice_Holt

The OP was being paid housing costs on a property for which they did not have a rental liability.
Thence the overpayment (and all UC repayments are recoverable in law)..

I'm unsure if whether UC (probably via a tribunal direction) can offset the overpayment against rent they would have paid on the property for which the OP does have a rental liability.

The OP should immediately provide current tenancy details to UC (if they haven't already).
Document this to the tribunal, and supply the tribunal (in advance) with:
Proof of their UC change of address notification;
Schedule and document all the rental payments at the new address;
Supply any mitigating circumstances for not supplying the current rental agreement (illness, family circumstances, lack of experience claiming benefits, etc)
Ask the tribunal if offsetting can be applied. 

OP - do you have a representative for the hearing ?

https://assets.publishing.service.gov.uk/media/65ead4b962ff489bab87b2ea/benefit-overpayment-recovery-guide.pdf

Paras 3.14 on - re offsetting.

And
https://assets.publishing.service.gov.uk/media/62b31ae6e90e0765d091f29b/admd1.pdf

(Although I can't spot the section on offsetting easily)

Medusa80

Yes, I sent them the rental agreement and when it started. I explained the rent was paid on time every month as shown by bank statements. A sanction I could understand but I am not, nor is anyone else, 10k better off. With the additional family issues as well, I am disappointed they are taking it so far. Their own advice is saying to work out what I should have gotten in comparison to what I did get and work it out that way but I got exactly the same amount. Not for this exact situation but for when something hasn't been declared. This advisor from Raise said I have no grounds but I don't know. UC are saying to proceed with the tribunal. I asked the tribunal because paused as I was struggling to gather evidence whilst dealing with my daughter's MH issues and received this. I have said I would like it to go ahead on a paper case. 

Alice_Holt

I'd recommend you attend the hearing - generally paper hearings are much less successful.

If you participate you can explain things to the tribunal.

Make sure you send the tribunal proof that you sent UC your rental agreement. It's vital that is in their paperwork before the judge.

kaMelo

Regarding ADM Chapter D1 (link posted above by @Alice_Holt) and offsetting.
https://assets.publishing.service.gov.uk/media/62b31ae6e90e0765d091f29b/admd1.pdf

Would D1085 - D1087 apply in this scenario?

Change of dwelling

D1085 The guidance in D1086 and D1087 applies when an overpayment of housing costs has occurred in the following circumstances

1. the claimant has moved from their previous home (dwelling A) to another home (dwelling B ) or

2. they have been awarded housing costs for dwelling A to which they are no longer entitled because they do not, or are treated as not, living there or

3. housing costs are paid to the same person in respect of the claimant’s occupation of dwelling B as it was paid in respect of dwelling A1.

D1086 When the DM is calculating the recoverable overpayment, they may at their discretion, deduct an amount equal the claimant’s entitlement to housing costs for the assessment period in respect of

dwelling B for the number of assessment periods equal to the number of assessment periods during which the claimant was overpaid housing costs for dwelling A1.

D1087 Where a sum has been deducted as in D1086, an equivalent sum is to be treated as having been paid in respect of the claimant’s entitlement to housing costs for dwelling B for the number of assessment periods equal to the number of assessment periods during which the claimant was overpaid housing costs for dwelling A1.


(It may help to read more of the paper than the paragraphs I've highlighted here as it gives more context about determining overpayment, recovery and offsetting in general.)

Yamor

The offsetting rules are not directly relevant here.

All offsetting does is cancel out an underpayment with an overpayment. However, there must be an underpayment first.

DWP seem to be arguing in this case that there was no underpayment because the new liability was never reported until much later, and a beneficial change of circumstances cannot (normally) be backdated earlier than the AP in which it is reported.

However, it has long been accepted within Housing Benefit that a change of address can be treated as a single change of circumstances (i.e., not as two separate changes - one ending entitlement at the old address, and then a further change beginning entitlement at the new address). There is therefore no limit to backdating (except insofar as the new entitlement exceeds the old entitlement), and this was accepted by DWP.

There is no reason the same shouldn't apply to UC. The OP should therefore make this argument to the Tribunal.

Whether UC then offset the overpayment with the underpayment doesn't really matter, although it is of course simpler if they do!

Newcad

There is a similar case  started yesterday by an advisor on Rightsnet.
(So similar that it's probably the same one, showing that an advisor is on the case).

The thinking there from a respected Housing Costs advisor is that there will be both an overpayment for the old property and an underpayment for the new property.
Depending on circumstances those may be differen amounts though.

The DWP do have discretion in such cases to offset one against the other - but it is at their discretion.
It is actually set out in legislation:

Regulation 9 of The Social Security (Overpayments and Recovery) Regulations 2013

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
9.—(1) This regulation applies where an overpayment of housing costs has occurred in the following circumstances—

(a)the claimant has moved from the dwelling previously occupied as their home (“dwelling A”) to another dwelling which they occupy as their home (“dwelling B”);

(b)they have been awarded housing costs in respect of dwelling A to which they are not entitled because they are no longer occupying or treated as occupying dwelling A as their home; and

(c)housing costs are payable to the same person in respect of the claimant's occupation of dwelling B as it was paid to in respect of dwelling A.

(2) In calculating the recoverable amount of the overpayment, the Secretary of State may, at his or her discretion, deduct an amount equal to the claimant's entitlement to housing costs for the assessment period in respect of dwelling B for the number of assessment periods equal to the number of assessment periods during which the claimant was overpaid housing costs in respect of dwelling A.

(3) Where a sum has been deducted under paragraph (2), an equivalent sum is to be treated as having been paid in respect of the claimant's entitlement to housing costs in respect of dwelling B for the number of assessment periods equal to the number of assessment periods during which the claimant was overpaid housing costs in respect of dwelling A.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

My own additional thoughts - While the DWP will be quick to jump on the overpayment and want it back they may well be less speedy to recognise the corresponding underpayment.

Medusa80

Newcad said:

There is a similar case  started yesterday by an advisor on Rightsnet.
(So similar that it's probably the same one, showing that an advisor is on the case).

The thinking there from a respected Housing Costs advisor is that there will be both an overpayment for the old property and an underpayment for the new property.
Depending on circumstances those may be differen amounts though.

The DWP do have discretion in such cases to offset one against the other - but it is at their discretion.
It is actually set out in legislation:

Regulation 9 of The Social Security (Overpayments and Recovery) Regulations 2013

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
9.—(1) This regulation applies where an overpayment of housing costs has occurred in the following circumstances—

(a)the claimant has moved from the dwelling previously occupied as their home (“dwelling A”) to another dwelling which they occupy as their home (“dwelling B”);

(b)they have been awarded housing costs in respect of dwelling A to which they are not entitled because they are no longer occupying or treated as occupying dwelling A as their home; and

(c)housing costs are payable to the same person in respect of the claimant's occupation of dwelling B as it was paid to in respect of dwelling A.

(2) In calculating the recoverable amount of the overpayment, the Secretary of State may, at his or her discretion, deduct an amount equal to the claimant's entitlement to housing costs for the assessment period in respect of dwelling B for the number of assessment periods equal to the number of assessment periods during which the claimant was overpaid housing costs in respect of dwelling A.

(3) Where a sum has been deducted under paragraph (2), an equivalent sum is to be treated as having been paid in respect of the claimant's entitlement to housing costs in respect of dwelling B for the number of assessment periods equal to the number of assessment periods during which the claimant was overpaid housing costs in respect of dwelling A.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

My own additional thoughts - While the DWP will be quick to jump on the overpayment and want it back they may well be less speedy to recognise the corresponding underpayment.

Newcad said:

There is a similar case  started yesterday by an advisor on Rightsnet.
(So similar that it's probably the same one, showing that an advisor is on the case).

The thinking there from a respected Housing Costs advisor is that there will be both an overpayment for the old property and an underpayment for the new property.
Depending on circumstances those may be differen amounts though.

The DWP do have discretion in such cases to offset one against the other - but it is at their discretion.
It is actually set out in legislation:

Regulation 9 of The Social Security (Overpayments and Recovery) Regulations 2013

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
9.—(1) This regulation applies where an overpayment of housing costs has occurred in the following circumstances—

(a)the claimant has moved from the dwelling previously occupied as their home (“dwelling A”) to another dwelling which they occupy as their home (“dwelling B”);

(b)they have been awarded housing costs in respect of dwelling A to which they are not entitled because they are no longer occupying or treated as occupying dwelling A as their home; and

(c)housing costs are payable to the same person in respect of the claimant's occupation of dwelling B as it was paid to in respect of dwelling A.

(2) In calculating the recoverable amount of the overpayment, the Secretary of State may, at his or her discretion, deduct an amount equal to the claimant's entitlement to housing costs for the assessment period in respect of dwelling B for the number of assessment periods equal to the number of assessment periods during which the claimant was overpaid housing costs in respect of dwelling A.

(3) Where a sum has been deducted under paragraph (2), an equivalent sum is to be treated as having been paid in respect of the claimant's entitlement to housing costs in respect of dwelling B for the number of assessment periods equal to the number of assessment periods during which the claimant was overpaid housing costs in respect of dwelling A.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

My own additional thoughts - While the DWP will be quick to jump on the overpayment and want it back they may well be less speedy to recognise the corresponding underpayment.

It's not my case. I was already on UC when I moved and moved within the same area meaning my housing element stayed the same. The only advisor I had asked me to send what UC had sent me and told me I should withdraw my appeal. 

Newcad

Fair enough, coincidences do happen.

However the advice is still the same.

There should be both an overpayment for the old address and an underpayment for the new address.

As you say you get housing element at LHA then the amounts would be the same - (at the most different by a month depending just when in your AP you moved).

The DWP could use the underpayment to offset the overpayment, but don't have to.

Insead they can say with one hand that you have a debt for the old place, and then with the other hand give you a pile of backpay for the new place. You would then have the money to pay the debt.

If what you have told us is the full story then the DWP can't have it both ways. They can't say it was paid for the wrong property and want it back then refuse to pay it for the right one.

Newcad

Just reading back and this statement in the original post struck me:

Medusa80 said:

.. was private renting after fleeing domestic abuse. I moved to another place with help of council ...

That wouldn't have been "Emergency Accommodation" from the Council would it?

I'd been assuming not if you are still living there, and as you were already out of the abuse situation and living in the 'private rental', but if it was council "Emergency Accomodation" then that could have a significant bearing here.