10k UC overpayment

HillStreetBlues

Spoonie_Turtle said:

HillStreetBlues said:

Newcad said:

Benefit law says that in order to be eligible for UC-HE you have to be liable for paying rent at a particular property

Can you link to that relevant benefit law, as it would help the OP to decide on a defence. Also I like to learn more by reading statute / case law.

Happy to be corrected as always, but I think it's here https://www.legislation.gov.uk/uksi/2013/376/regulation/25
Paragraph 3 deals with liability

That's what I have read and wondered if there was was thing else that makes clearer.

The OP could argue that "accommodation they occupy as their home" is now Property B where they are currently living.
It switched from A to B when OP moved, so there was no break in liability as both A &B fulfill the criteria set out in in law.
The OP has claimed a benefit they were entitled to, and remained entitled to it after moving.
I haven't read anything that states failure to report a change of property address ends a claim for the H.E. even if the claimant remains entitled to it.

I'm not saying this is would work as an appeal, but with an appeal you can give more than one reason for appealing. The tribunal will look at each reason and decide if on each issue, as long as the OP is correct in law on one issue they will win.

So to rule out a issue a person needs to be certain that it won't win.

Spoonie_Turtle

HillStreetBlues said:

Spoonie_Turtle said:

HillStreetBlues said:

Newcad said:

Benefit law says that in order to be eligible for UC-HE you have to be liable for paying rent at a particular property

Can you link to that relevant benefit law, as it would help the OP to decide on a defence. Also I like to learn more by reading statute / case law.

Happy to be corrected as always, but I think it's here https://www.legislation.gov.uk/uksi/2013/376/regulation/25
Paragraph 3 deals with liability

That's what I have read and wondered if there was was thing else that makes clearer.

The OP could argue that "accommodation they occupy as their home" is now Property B where they are currently living.
It switched from A to B when OP moved, so there was no break in liability as both A &B fulfill the criteria set out in in law.
The OP has claimed a benefit they were entitled to, and remained entitled to it after moving.
I haven't read anything that states failure to report a change of property address ends a claim for the H.E. even if the claimant remains entitled to it.

I'm not saying this is would work as an appeal, but with an appeal you can give more than one reason for appealing. The tribunal will look at each reason and decide if on each issue, as long as the OP is correct in law on one issue they will win.

So to rule out a issue a person needs to be certain that it won't win.

Oh I see what you mean.  

The guidance specifies 'the accommodation' but the actual legislation says 'in respect of accommodation' - so I understand the root of your question now, and am also interested to know the answer.

Newcad

Again you have to separate them.

When living in property B the "accommodation they occupy as their home" was property B.
So they were not entitled to UC-HE for property A.
Any UC-HE that was paid was paid to them for property A when they were not living there is an overpayment.
No argument, no appeal, it was an overpayment of UC-HE for property A, payment which they were not entitled to.

When living in property B the "accommodation they occupy as their home" was property B.
So they were entitled to UC-HE for property B.
However that was not paid.
So they now have to go about getting that entilement for property B backpaid for the whole time that they were living there.

Yes, because of LHA the amounts of UC-HE for each of the two properties were the same.
But it was paid for the incorrect property and the DWP want that incorrect payment back, instead the occupier has to now get UC-HE backpaid for the correct property.

You might see that as being just a technicality, - but it is what the law says - and I'm sure that you wouldn't want the DWP to just ignore what the law says?
(At least not any more than they already try to. LOL).

HillStreetBlues

Newcad said:

Again you have to separate them.

When living in property B the "accommodation they occupy as their home" was property B.
So they were not entitled to UC-HE for property A.
Any UC-HE that was paid was paid to them for property A when they were not living there is an overpayment.
No argument, no appeal, it was an overpayment of UC-HE for property A, payment which they were not entitled to.

When living in property B the "accommodation they occupy as their home" was property B.
So they were entitled to UC-HE for property B.
However that was not paid.
So they now have to go about getting that entilement for property B backpaid for the whole time that they were living there.

Yes, because of LHA the amounts of UC-HE for each of the two properties were the same.
But it was paid for the incorrect property and the DWP want that incorrect payment back, instead the occupier has to now get UC-HE backpaid for the correct property.

You might see that as being just a technicality, - but it is what the law says - and I'm sure that you wouldn't want the DWP to just ignore what the law says?
(At least not any more than they already try to. LOL).

Again where does the law say that? because I haven't seen the law spelled out as clearly as that.

My reading of the actual law doesn't state an certain address, just the property they are living is as their home, OP lived in a property they called home and then moved to a property they called home. I might not be correct, but I'm also not claiming most post as fact.
 

Newcad

I'm not sure why you are confused?

"The property they are living in as their home" is a certain address. (It's a 'Property', it has an address).

The OP has been paid UC-HE for a property that they were not living in as their home.
They were not entitled to that money because they were not living there as their home, and so the DWP want that money back.

That's how things stand at the moment, the DWP have only currently looked at that overpayment.

There is then the seperate second issue of:

The OP has not been paid UC-HE for the property that they were living in as their home.
The DWP have not yet looked at that, when they do they should backpay what the OP was entitled to.

Once that second issue is sorted out then the two issues, one overpayment, one underpayment, should balance out.

PS. You seem to be expecting the DWP to use some 'common sense' and look at both issues together as one thing, but the DWP don't (currently the UC system can't) do that, they have to look at each of the two issues seperately.

PPS. Don't always go looking for Legislation to spell everything out clearly - often what Legislation doesn't say is as important as what it does say.

HillStreetBlues

Newcad said:

PPS. Don't always go looking for Legislation to spell everything out clearly - often what Legislation doesn't say is as important as what it does say.

That is my point really, does the Legislation spell it out clearly enough, if not then it can open itself up to different viewpoints.

If you challenge the wording on the UC law if it's not totally clear, then any  Overpayment  law wouldn't apply if the challenge was successful.

PS I not disagreeing with was you are saying, but challenging it. 

Newcad

Words and Wording when used in legislation and other legal documents often has a specific meaning.
(Often that specific meaning is set out in a in the legislation, or in other legislation).

Just because the same word/wording can have a more general meaning in everyday use doesn't mean that it has that same general meaning in legislation.

In particular two different words can have the same general meaning in everyday use, but in legislation each one may have a specific meaning that distinguishes it from the other for legal purposes.

For example; What does "earned Income" mean?
In general use it can mean many things, but for UC it is defined in the legislation itself: https://www.legislation.gov.uk/uksi/2013/376/regulation/52 which then goes even futher with specific terms reating to 'Earned Income': https://www.legislation.gov.uk/uksi/2013/376/regulation/53
Anything not included there (ie. not written in the legislation) is not 'Earned Income' for UC purposes.

Trying to argue that a specific legal wording should be reinterpret on the basis of it's general usage doesn't get very far in courts.
(Although things that are not clearly specified can and sometimes do get reinterpreted by judges - that's called Case Law).

PS. Anyone remember 'Flymo' on Youreable?
He started giving disability/benefits advice on fora, so had to get into these legal aspects, and ended up doing a Law Degree.
I learnt quite a bit from him when I first started, but I'm not going to go that far.

Yamor

This is a hugely complex issue, and I could discuss it for hours!

However, a couple of basic points:

It is impossible to have an "overpayment" and "underpayment" at the same time on the same award of benefit.
An overpayment can only occur when an "outcome decision" is revised or superseded and entitlement is reduced. If a change of address occurs but it does not affect entitlement, then the outcome decision has not changed, and no supersession can be carried out, and there will have been no overpayment.
DWP for Universal Credit (and LAs for HB) like to view an award of the Housing Element (or Housing Benefit) as being discrete to a particular property, however, that is legally incorrect.

It is worth looking at the following decisions:

https://assets.publishing.service.gov.uk/media/62712985e90e0746c34a9eb3/CH_1324_2020__HB_000752_2020_.pdf
(see in particular paras. 88-109)

https://administrativeappeals.decisions.tribunals.gov.uk//judgmentfiles/j4009/CH 0537 2012-01.doc
(See from para. 23 onwards)

HillStreetBlues

@Yamor
I totally agree complex issue, it's certainly not black & white.
The real risk I have seen in this thread is someone being put off with an avenue of appeal, just because someone is convinced it wouldn't work. My view has been supply the argument and let a Judge decide on the merits.

Thank you for supplying some Case law on the issue.

108. In this case, the tenant’s change of circumstances was a fact, but was not
material. The change of circumstances should have been disclosed to Stoke, but that
failure did not cause the overpayment. The accommodation that the tenant occupied in
Flat 4 was neither more nor less extensive that that he occupied in Flat 1. If the original
award had been correct, the change of circumstances would (if reported) have led to no
change in the amount of HB payable. Rather the reason that benefit was overpaid
(and continued to be overpaid after the move to Flat 4) was that the original award had not
been correct

That could answer my question posted earlier in the thread.

HillStreetBlues said:

I have read this thread with interest and will touch of issues others poster's comments.
(basing this on B&B to Property A to Property B )

Is this a true CoC insofar as the relevant law?
OP moved into A and supplied proof of liability to pay rent and was paid the HE. The OP is entitled to that payment but to get that payment the OP needs to show proof so it can be checked. The address doesn't matter it could be a grubby flat or Buck House what matters is the the entitlement for HE.

OP moves to property B, the OP should have submitted new tenancy for it to be checked for entitlement, if entitled then HE would still be paid and there's no break in UC.
OP didn't submit new tenancy to be checked, so my thinking is the issue is was OP still entitled to the HE? if so am wondering if it is a true CoC or just simply a change of property. Yes they didn't get to check the OP was entitled, but does that takeaway that entitlement?

If I was appealing, that would be my angle of defence saying my entitlement never changed, just the address, as long as OP can prove entitlement for property B from date of moving in.

The ruling above seems to confirm that a person should inform, but if that person fails to, it doesn't necessarily take away entitlement.

Danien

I think the discussion here shows that the OP needs to get specialist advice and not just the raise adviser, as withdrawing the appeal and accepting the overpayment is not the correct action here. A different welfare rights organisation with experience of complex issues would be a good choice. That further specialist advice is being sought should be mentioned when trying to delay the appeal. And definitely do not go with a paper appeal on this one.

Has the OP actually applied for the housing element on rhe current address from rhe date they moved in? It may be there is two actions that need to be made at the same time:

Firstly - Challenge the overpayment to delay payments being taken from UC. This will not ultimately be successful as there is no doubt an overpayment of the housing element for this period of time following the change of address. A specialist adviser needs to check it has been properly calculated, and delay collection as long as possible. Abd if collection is going to start negotiate payments as low as possible.

Secondly - Claim the housing element from the date of moving into the current address (if not already done) and get a decision from the move in date. Then if this is refused then that decision can be challenged and ultimately appealled. If this appeal is successful, then the payment can be offset against the original overpayment.

This is how I would have handled it.