10k UC overpayment

sheramber

mybestattempt said:

Newcad said:

No there is nothing 'notional' about it. (But yes they will/should be the same amount).

The OP was not entitled to UC-HE for that address so it was simply an overpayment for that address.
The OP freely admits that she wasn't living there so the decision is correct and there is nothing to appeal against.

The OP was entitled to UC-HE for the address where she was living, but wasn't claiming it because she was claiming for the wrong address.
So that now needs to be pushed for as underpayment.

PS. Just to note that I have also decided that the information about the DA and breakup was simply the background story and what is at issue is just the 2 properties 'up North'.
However the OP hasn't been back for a while to confirm that, I hope that she didn't get overwhelmed by our discussions.

Thanks, I also hope the OP is still reading.

I'm just wondering how you would take forward the underpayment issue? 

Would a decision letter from DWP be required stating there was £0 housing element entitlement (in respect of property B ) from the date of the move to property B up to the date the move was notified and that there is a right for a mandatory review and then appeal against that decision? 

On page 2 the OP has given a copy of such a letter.

HillStreetBlues

kaMelo said:

HillStreetBlues said:

mybestattempt said:

I understand the OP has already asked for off setting and DWP refused.

The judge has no discretion in this matter. The legislation is clear that only DWP can exercise discretion to off set.

A Judge can and indeed should ignore any legislation that is unlawful or irrational, or is incorrectly drafted.
So a Judge could rule giving the Secretary of State sole discretion without any guidance on how a decision is made is irrational.
Person A could be treated completely differently to person B although the situation is exactly the same, that on the bases of law could seem irrational.

For fear of derailing the thread, that statement is just plain wrong. A judge can interpret but cannot simply ignore legislation nor decide it's unlawful or irrational, legislation by definition is the law even if it is irrational or poorly written. Legislation can of course be challenged via a judicial review but even if the review finds against the Government the judiciary does not have the power to set that legislation aside, it can only tell Government and Parliament to think again. It is then for the Government and Parliament to decide what to do.

That is simply wrong,
Legislation must be lawful
The lost of EDP to those of natural migration has been found unlawful , there is no think again as this has been ruled unlawful no amount of further legislation would change this.
What the Government has to to is comply with that ruling law. so that has resulted if further legislation  that complies with the court ruling.

Much of the ruling on benefits are from Case law, that's the decision of judges, not Parliament

peteuk

sheramber said:

mybestattempt said:

Newcad said:

No there is nothing 'notional' about it. (But yes they will/should be the same amount).

The OP was not entitled to UC-HE for that address so it was simply an overpayment for that address.
The OP freely admits that she wasn't living there so the decision is correct and there is nothing to appeal against.

The OP was entitled to UC-HE for the address where she was living, but wasn't claiming it because she was claiming for the wrong address.
So that now needs to be pushed for as underpayment.

PS. Just to note that I have also decided that the information about the DA and breakup was simply the background story and what is at issue is just the 2 properties 'up North'.
However the OP hasn't been back for a while to confirm that, I hope that she didn't get overwhelmed by our discussions.

Thanks, I also hope the OP is still reading.

I'm just wondering how you would take forward the underpayment issue? 

Would a decision letter from DWP be required stating there was £0 housing element entitlement (in respect of property B ) from the date of the move to property B up to the date the move was notified and that there is a right for a mandatory review and then appeal against that decision? 

On page 2 the OP has given a copy of such a letter.

There is a difference between entitled to and claiming,  if someone doesnt claim for something they are entitled to, it doesnt mean that years later they can automatically back date a claim on the simple grounds “they were entitled to it”

As per the letter on page 1 HB/Housing Elememnt was paid on a property the OP didn’t live at, and now that they have verified the new address, going forward HB/HE will be paid for the correct property.  Thus there is an overpayment to claim back of HB/HE for the property they didn’t live at.   Decision maker has made that ruling and it is going further. 

kaMelo

HillStreetBlues said:

kaMelo said:

HillStreetBlues said:

mybestattempt said:

I understand the OP has already asked for off setting and DWP refused.

The judge has no discretion in this matter. The legislation is clear that only DWP can exercise discretion to off set.

A Judge can and indeed should ignore any legislation that is unlawful or irrational, or is incorrectly drafted.
So a Judge could rule giving the Secretary of State sole discretion without any guidance on how a decision is made is irrational.
Person A could be treated completely differently to person B although the situation is exactly the same, that on the bases of law could seem irrational.

For fear of derailing the thread, that statement is just plain wrong. A judge can interpret but cannot simply ignore legislation nor decide it's unlawful or irrational, legislation by definition is the law even if it is irrational or poorly written. Legislation can of course be challenged via a judicial review but even if the review finds against the Government the judiciary does not have the power to set that legislation aside, it can only tell Government and Parliament to think again. It is then for the Government and Parliament to decide what to do.

That is simply wrong,
Legislation must be lawful
The lost of EDP to those of natural migration has been found unlawful , there is no think again as this has been ruled unlawful no amount of further legislation would change this.
What the Government has to to is comply with that ruling law. so that has resulted if further legislation  that complies with the court ruling.

It's not wrong.
 In the case you mention at no point did a judge simply ignore the legislation, even after it was found unlawful by the review it was still enforced. The review essentially told Government to think again, which it did and introduced new legislation. Only after this new legislation was introduced did anything change.

Judges do not have the power to write, modify or ignore legislation, neither can they tell Government or Parliament what legislation to write or how to write it. They can tell Government legislation is not compliant with the law, how Government or Parliament writes new legislation to make it compliant is completely a matter for them, not judges, and there are more ways than one to achieve compliance. But until such new legislation is introduced the current legislation, however bad, must be followed.

HillStreetBlues said:

Much of the ruling on benefits are from Case law, that's the decision of judges, not Parliament

That's how the common law system works. Parliament introduce legislation, judges interpret the legislation and create case law and precedent that others follow.
If at any point Government things that a piece of legislation has too wide a scope for interpretation by judges it can modify the legislation to remove or narrow the scope of interpretation. 

HillStreetBlues

Have a read of https://assets.publishing.service.gov.uk/media/65ef30b762ff4898bf87b2f7/UA-2022-001286-UOTH.pdf  that is now case law.

Claimant appealed that they were now getting less transferring to UC.
LT sided with claimant. As the claimants rights were breached the Judge ignored (disapply) the legislation.

Having found a breach of the Claimant’s Convention rights Judge Johnson
decided that the appropriate remedy was to disapply the offending provision of
secondary legislation and to set the SoS Decision aside on the basis that the
Claimant’s Universal Credit award should be recalculated to include the Transitional
Element as if it had not been reduced to nil by the award of the Housing Costs Element
from 11 May 2021.

The UT upheld the decision made by the LT

Judge Johnson’s decision that the application of Schedule 2 and regulation 55 of
the Transitional Regulations (as amended) in the way that the Secretary of State
applied it resulted in unlawful discrimination against the Claimant in breach of section
6 of the HRA 1998 and Article 14 of the Convention involved no material error of law.

Any Lower court must now follow the UT and disapply the offending provision of secondary legislation in cases such as this.

As that ruling clearly shows a Judge can and should ignore any legislation that is unlawful, and in the case above it's unlawful as it breached the claimants rights.

The LT did order the SoS to recalculate the claimant's UC, so not telling them to think again but given them an order,

 

kaMelo

Whilst it appears you've got me, and you have in a way, I was maybe not clear enough in what I was saying.

Secondary legislation, as an executive order, can be over ruled if found incompatible with primary legislation  This is what has happened in the case you quote. The transitional protection legislation, which is secondary legislation (which I was surprised about if I'm honest but there you go)  was found incompatible with the a piece of primary legislation, In the absence of another piece of primary legislation preventing them doing so a judge is free, indeed compelled, to disapply the secondary legislation to uphold the primary legislation.. 

Primary legislation however is different, even if incompatible with another piece of primary legislation all a court can do is point out the incompatibility whilst implementing it, it cannot disapply it. The only way a piece of primary legislation can be changed is with another piece of primary legislation voted through Parliament.. 
Whilst I was maybe not clear, this is what I was talking about.

Yamor

As was said towards the beginning of this thread, whether any 'overpayment' can be cancelled with an 'underpayment' is not the issue here.

The issue the OP has is that UC are saying that the housing element will only be included for the new property from when it was reported to UC, leaving a gap in entitlement to the housing element. As such, UC are arguing that there is no underpayment here, as the new rent liability was reported late.
To give an example where that argument would be correct:
A claimant lost entitlement to the carer element, and at the same time had a child. They didn't report either change to UC. Then, two years later, both changes are discovered. UC will (correctly) remove the carer element retrospectively, but only add a child element now.
That is what UC are trying to do here with the housing element.

However, it has long been accepted that a change of address is simply a single change of circumstances, and therefore there is no limit on backdating entitlement to the housing element for the new property.

mybestattempt

Yamor said:

As was said towards the beginning of this thread, whether any 'overpayment' can be cancelled with an 'underpayment' is not the issue here.

The issue the OP has is that UC are saying that the housing element will only be included for the new property from when it was reported to UC, leaving a gap in entitlement to the housing element. As such, UC are arguing that there is no underpayment here, as the new rent liability was reported late.
To give an example where that argument would be correct:
A claimant lost entitlement to the carer element, and at the same time had a child. They didn't report either change to UC. Then, two years later, both changes are discovered. UC will (correctly) remove the carer element retrospectively, but only add a child element now.
That is what UC are trying to do here with the housing element.

However, it has long been accepted that a change of address is simply a single change of circumstances, and therefore there is no limit on backdating entitlement to the housing element for the new property.

I understand all that but what I've wanted to know is how does the OP achieve what she wants.

What practical steps does she need to take so she gets the HE for property B for the period from moving in until she notified DWP? 

(I initially thought the appeal to the tribunal would include backdating HE for property B, but the consensus seems to be it only addresses the property A overpayment)

The OP, from what she has said has already told DWP she wants HE for property B from the date she moved in (and that the amount involved is the same as the overpayment for property A).

What should be her next step and if that does not result in what she wants how does she pursue it further?

Danien

Yamor said:

As was said towards the beginning of this thread, whether any 'overpayment' can be cancelled with an 'underpayment' is not the issue here.

The issue the OP has is that UC are saying that the housing element will only be included for the new property from when it was reported to UC, leaving a gap in entitlement to the housing element. As such, UC are arguing that there is no underpayment here, as the new rent liability was reported late.
To give an example where that argument would be correct:
A claimant lost entitlement to the carer element, and at the same time had a child. They didn't report either change to UC. Then, two years later, both changes are discovered. UC will (correctly) remove the carer element retrospectively, but only add a child element now.
That is what UC are trying to do here with the housing element.

However, it has long been accepted that a change of address is simply a single change of circumstances, and therefore there is no limit on backdating entitlement to the housing element for the new property.

Agreed. Therefore the decision not to award from date of move in is what needs to be appealed- I looked back through the posts and can't see where the OP  said they got this decision. I can only see that they notified the change of address, got the housing element for the new address from time of notification, then received the overpayment notice. Please show me if I've missed it.

As I said before, the OP needs to request the DWP look at entitlement from date of move in if the DWP haven't already done this. And if they have done this and refused entitlement, then appeal that decision. Only once entitlement has been established can a decision maker decide about offsetting. 

The current appeal holds the overpayment recovery,  but this entitlement decision needs to be established and if necessary, appealed.

Danien

sheramber said:

mybestattempt said:

Newcad said:

No there is nothing 'notional' about it. (But yes they will/should be the same amount).

The OP was not entitled to UC-HE for that address so it was simply an overpayment for that address.
The OP freely admits that she wasn't living there so the decision is correct and there is nothing to appeal against.

The OP was entitled to UC-HE for the address where she was living, but wasn't claiming it because she was claiming for the wrong address.
So that now needs to be pushed for as underpayment.

PS. Just to note that I have also decided that the information about the DA and breakup was simply the background story and what is at issue is just the 2 properties 'up North'.
However the OP hasn't been back for a while to confirm that, I hope that she didn't get overwhelmed by our discussions.

Thanks, I also hope the OP is still reading.

I'm just wondering how you would take forward the underpayment issue? 

Would a decision letter from DWP be required stating there was £0 housing element entitlement (in respect of property B ) from the date of the move to property B up to the date the move was notified and that there is a right for a mandatory review and then appeal against that decision? 

On page 2 the OP has given a copy of such a letter.

I've looked and as far as I can see it doesn't say that entitlement was refused from date of move in to date of notification, only that OP was only entitled from date of notification when address is verified. These are not the same things and do not mean there is a decision refusing entitlement from date of move in. Happy to be shown to be wrong as the next step would be for OP to appeal the decision refusing entitlement from move in, rather than having to request it, be refused and then appeal which takes longer.

My worry is that the OP isn't reading as the discussion has gone on a long time.