10k UC overpayment

kaMelo

The OP is already at tribunal stage. Unfortunately due to personal issues they have paused the process. This is shown in their previous posts.

peteuk

Danien said:

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.

Page 1 shows the later confirming the date the new address was accepted.

mybestattempt

kaMelo said:

The OP is already at tribunal stage. Unfortunately due to personal issues they have paused the process. This is shown in their previous posts.

Agreed, but everyone seems to be sure the appeal with the tribunal will only be an appeal against the property A overpayment and if that is so, she will of course lose.

She needs a formal decision form DWP for property B about entitlement to HE from the move in date, which if not in her favour, she can appeal to tribunal. 

For whatever reason, it appears DWP may not have looked at the whole picture and given formal decisions on both issues at the same time which could have been taken forward together.

HillStreetBlues

kaMelo said:

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.

I agree with that, and see where what angle you were coming from.
Maybe wasn't clear either,  my viewpoint was from the  twice linked to The Social Security (Overpayments and Recovery) Regulations 2013. a UK Statutory Instrument, so secondary legislation.

Danien

peteuk said:

Danien said:

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.

Page 1 shows the later confirming the date the new address was accepted.

Page 1 shows the later confirming the date the new address was accepted.

Yes, but not whether they even looked at the period from move in to date of notification. The OP may have appealed the overpayment, but needs to have a decision to appeal with regards to entitlement from date of move in to date of notification of address change. An appeal judge cannot look at a decision that has not been made.

So either the decision was made and medusa80 has something that says 'you are not entitled from (whatever date of move in) to (day before whatever date of notification of address change was), or she only has what she showed us which says you are entitled from date of notification of address change because you did not notify us earlier. That does not say they have considered the period from move in date, only that they have only considered from the date OP notified them.

Take it before the appeal judge and they will say they cannot look at the entitlement prior to date of notification as there is not an appealable decision there if the DWP themselves have not made an explicit decision. I've been in an appeal where a judge said this - part of the matter had to go back to the DWP to decide on. 

In my opinion (correct me if I'm wrong) here is the issue: The current appeal is stalling recovery. If medusa80 does not go to appeal with all the right decisions in place, the overpayment appeal will fail. The judge will probably send the matter back to DWP to decide entitlement from date of move in to date of notification of move, with possibly suggestion about offsetting if entitlement exists.

At the point the appeal fails the DWP are likely to put recovery into place on existing UC claim. If the DWP then refuse entitlement that matter would need to be appealed, all the time recovery continuing unless DWP agree to hold recovery.

Better to make sure medusa80 has the right decisions in place and go forward from there.

So:  1) medusa80 needs to check if she has an actual decision stating whether entitlement to housing element exists at current property from date of moving in to the day before the current housing element starts.

If yes entitlement does exist: then medusa80 needs to request offsetting from DWP against current overpayment for sane period. If that offsetting is refused, I would still take that matter to appeal whether discretionary or not.

If no decision exists on entitlement to housing element from date of move in to day before current entitlement to housing element starts, then an explicit decision needs to be requested. Of the decision gives entitlement, then again request offsetting and take to appeal if refused.

If the decision on entitlement to housing element for the period in question is refused, then go through the process mandatory reconsideration and appeal and then request both matters - this appeal and overpayment appeal get looked at in same appeal as they are joined.

But again I wouldn't advise medusa80 does this alone, but gets an experienced adviser to help them who understands the issues.

peteuk

Danien said:

peteuk said:

Page 1 shows the later confirming the date the new address was accepted.

Page 1 shows the later confirming the date the new address was accepted.

Yes, but not whether they even looked at the period from move in to date of notification. The OP may have appealed the overpayment, but needs to have a decision to appeal with regards to entitlement from date of move in to date of notification of address change. An appeal judge cannot look at a decision that has not been made.

So either the decision was made and medusa80 has something that says 'you are not entitled from (whatever date of move in) to (day before whatever date of notification of address change was), or she only has what she showed us which says you are entitled from date of notification of address change because you did not notify us earlier. That does not say they have considered the period from move in date, only that they have only considered from the date OP notified them.

Take it before the appeal judge and they will say they cannot look at the entitlement prior to date of notification as there is not an appealable decision there if the DWP themselves have not made an explicit decision. I've been in an appeal where a judge said this - part of the matter had to go back to the DWP to decide on. 

In my opinion (correct me if I'm wrong) here is the issue: The current appeal is stalling recovery. If medusa80 does not go to appeal with all the right decisions in place, the overpayment appeal will fail. The judge will probably send the matter back to DWP to decide entitlement from date of move in to date of notification of move, with possibly suggestion about offsetting if entitlement exists.

At the point the appeal fails the DWP are likely to put recovery into place on existing UC claim. If the DWP then refuse entitlement that matter would need to be appealed, all the time recovery continuing unless DWP agree to hold recovery.

Better to make sure medusa80 has the right decisions in place and go forward from there.

So:  1) medusa80 needs to check if she has an actual decision stating whether entitlement to housing element exists at current property from date of moving in to the day before the current housing element starts.

If yes entitlement does exist: then medusa80 needs to request offsetting from DWP against current overpayment for sane period. If that offsetting is refused, I would still take that matter to appeal whether discretionary or not.

If no decision exists on entitlement to housing element from date of move in to day before current entitlement to housing element starts, then an explicit decision needs to be requested. Of the decision gives entitlement, then again request offsetting and take to appeal if refused.

If the decision on entitlement to housing element for the period in question is refused, then go through the process mandatory reconsideration and appeal and then request both matters - this appeal and overpayment appeal get looked at in same appeal as they are joined.

But again I wouldn't advise medusa80 does this alone, but gets an experienced adviser to help them who understands the issues.

The letter reads…

The overpayment occurred due to the housing costs not being

verified for over two years after you moved into the property. On your claim you was still registered as living

at (address removed)  and the money you received for housing each AP was for this address. Only verified housing can be paid and your current address wasn't verified until September 2023.

The housing costs are now verified for from the date you made the change on your claim 28/09/2023 (AP 01/09/23 - 30/09/23) and you will continue to receive the housing element going forward.

Implying that both decisions have been made.  They have accepted the new address from Sept 2023 and discarded any back dating of the address.  If they had accepted the back dating of the address the letter would have be written so.

Yamor

I disagree with the legal position as set out by posters above.


I think it's worth explaining the history here though:

Until 2004, Housing Benefit awards were made for "benefit periods", and required renewal claims every so often. Under those rules, a benefit period ended when a claimant moved property, and a new claim was needed for the new property, even if it was in the same LA area. (There was a school of thought which suggested that the LA did not have to end the benefit period in such a case, but in practice, all LAs did do so.)

From 2004, benefit periods were abolished, and all Housing Benefit claims became open-ended. From then, it was accepted on all sides that a change of address within one LA was simply a change of circumstances and did not require a new claim.

However, the software packages used by LAs still treated a new address as a separate award of benefit. In fact, this is still the case today, and is the reason why many LAs require claimants to fill out a new claim form when they move house, even though they accept that it is not actually a new claim. This still happens today!

Soon after the new regime of open-ended claims came into effect, and as a direct result of how the LAs software treated a change of address, the problem arose that when the change of address was reported late, separate overpayments and underpayments were raised by the LAs software packages. This was despite the clear legal position being that it is not possible to have an overpayment and underpayment on the same award at the same time! (See the case law I linked to in my post on Page 4 of this thread.)
The reason this was a problem was because the alleged "underpayment" was being paid out as a lump sum, but the corresponding "overpayment" was only recovered as a normal overpayment (generally at a rate of about £10/week).

The government, instead of explaining to LAs what the 'real' legal position is, amended the Housing Benefit Regulations to say that such an overpayment could be recovered in full against the underpayment, rather than using the normal recovery methods. This Reg was in the Housing Benefit Regulations 2006, Reg. 102(1A) (see here: https://www.legislation.gov.uk/uksi/2006/213/regulation/102/2009-04-06).

However, within a few years, the government noted that there was still an issue. When a LA recovers an overpayment from a claimant, as a reward, the government let the LA keep 40% of the recovered amount. Because Reg. 102(1A) left in place the overpayment, but just allowed it to be recovered against the underpayment, this meant the LA could keep an extra 40% of the benefit award, due to having recovered an overpayment.

Therefore, in 2010, the government amended the regulations to remove Reg. 102(1A), and instead inserted a new Reg. 104A (see here: https://www.legislation.gov.uk/uksi/2006/213/regulation/104A), which allowed for the overpayment to be reduced by the underpayment. As the overpayment had now been "reduced", rather than "recovered", this stopped the LAs keeping an extra 40%.

As previously explained, this all ignored the true legal position that there was a single entitlement to HB throughout, and not separate overpayments and underpayments.

When Universal Credit was brought in, the drafters of the new regulations copied over much of the existing HB regs, and the (much discussed) Reg. 9 of the Overpayments Regs (see here: https://www.legislation.gov.uk/uksi/2013/384/regulation/9) was included as an almost exact copy of the old Reg 104A of the HB Regs. Basically, existing errors were carried forward into UC!

There ends the history!


Coming now to the current position:

DWP's position is that:

1. they accept that a change of address is simply a change of circumstances, which can be backdated despite being notified late (see for example para. 4.3 of this document: https://www.legislation.gov.uk/uksi/2009/2608/pdfs/uksiem_20092608_en.pdf)

BUT

2. they argue that a change of address leads to an overpayment and underpayment at the same time

However, this does not make logical sense, even without reference to the case law mentioned earlier. If it would be true that there is a separate overpayment and underpayment, then that would mean the change of address is not simply a single change of circumstances, but two separate changes: the ending of a rental liability for the old property and the starting of a new liability for the new one. If so, DWP should not accept that the new rental liability can be backdated despite being notified late.
Accepting that there is but one change of circumstances means you accept that the same entitlement to HB (and to the housing element of UC) continues despite the change of address (although clearly the change may mean the amount of benefit goes up or down).


Moving to what should happen in the OPs situation:

DWP would currently have already made three decisions:

1. An "entitlement decision" to remove entitlement to the housing element from the date the OP moved house. This would have come in the form of a "supersession", to remove the housing element from the assessment period in which the OP moved house.

2. An "overpayment decision" to decide that the resulting overpayment is recoverable. (Unfortunately, UC have a tendency not to explicitly provide overpayment decisions, and often just provide the entitlement decision.)

3. Another "entitlement decision" to include the housing element from the assessment period in which the OP reported the new address and rent liability. This would also have come in the form of a "supersession", to include the housing element from the AP in which the change of address was reported to UC.

Based on a correct understanding of the law, the decision against which to request a mandatory reconsideration (and then appeal) is decision 1, on the grounds that the decision was wrong to remove entitlement, and the decision to supersede should be revised.

As such, the OP has probably done the correct thing already, as I assume that is what they have appealed against.

However, if you want to work with how DWP view the situation, then the decision against which to request a mandatory reconsideration (and then appeal) is decision 3, on the grounds that the effective date of the decision was wrong, and should rather be backdated to the AP in which the original housing element was removed.

Either way, there is no requirement for a new decision to be sought before appealing.

Newcad

Indeed, that journal entry given on page 1 (and presumablty the DM letter it refers to) is both confirming ongoing payment and refusing backpayment of UC-HE for 'property B'.

It is that refusal that needs to be challenged/appealed against, as that journal entry also says it can be.

But like others I'm afraid that the OP has been swamped by the discussion and is no longer reading this thread.

HillStreetBlues

@Yamor
Thank you for explaining far better than I did or could
 
I agree with you that there is just a carry on,  the over/under payments just muddied the waters.

Yamor said:

Therefore, in 2010, the government amended the regulations to remove Reg. 102(1A), and instead inserted a new Reg. 104A (see here: https://www.legislation.gov.uk/uksi/2006/213/regulation/104A), which allowed for the overpayment to be reduced by the underpayment. As the overpayment had now been "reduced", rather than "recovered", this stopped the LAs keeping an extra 40%.

As previously explained, this all ignored the true legal position that there was a single entitlement to HB throughout, and not separate overpayments and underpayments.

When Universal Credit was brought in, the drafters of the new regulations copied over much of the existing HB regs, and the (much discussed) Reg. 9 of the Overpayments Regs (see here: https://www.legislation.gov.uk/uksi/2013/384/regulation/9) was included as an almost exact copy of the old Reg 104A of the HB Regs. Basically, existing errors were carried forward into UC!

This is what I was (very badly) trying to explain.
A judge has to ignore Reg 9  as deals with overpayments, and case law has shown in situations like this there isn't an overpayment.

Danien

peteuk said:

Danien said:

peteuk said:

Page 1 shows the later confirming the date the new address was accepted.

Page 1 shows the later confirming the date the new address was accepted.

Yes, but not whether they even looked at the period from move in to date of notification. The OP may have appealed the overpayment, but needs to have a decision to appeal with regards to entitlement from date of move in to date of notification of address change. An appeal judge cannot look at a decision that has not been made.

So either the decision was made and medusa80 has something that says 'you are not entitled from (whatever date of move in) to (day before whatever date of notification of address change was), or she only has what she showed us which says you are entitled from date of notification of address change because you did not notify us earlier. That does not say they have considered the period from move in date, only that they have only considered from the date OP notified them.

Take it before the appeal judge and they will say they cannot look at the entitlement prior to date of notification as there is not an appealable decision there if the DWP themselves have not made an explicit decision. I've been in an appeal where a judge said this - part of the matter had to go back to the DWP to decide on. 

In my opinion (correct me if I'm wrong) here is the issue: The current appeal is stalling recovery. If medusa80 does not go to appeal with all the right decisions in place, the overpayment appeal will fail. The judge will probably send the matter back to DWP to decide entitlement from date of move in to date of notification of move, with possibly suggestion about offsetting if entitlement exists.

At the point the appeal fails the DWP are likely to put recovery into place on existing UC claim. If the DWP then refuse entitlement that matter would need to be appealed, all the time recovery continuing unless DWP agree to hold recovery.

Better to make sure medusa80 has the right decisions in place and go forward from there.

So:  1) medusa80 needs to check if she has an actual decision stating whether entitlement to housing element exists at current property from date of moving in to the day before the current housing element starts.

If yes entitlement does exist: then medusa80 needs to request offsetting from DWP against current overpayment for sane period. If that offsetting is refused, I would still take that matter to appeal whether discretionary or not.

If no decision exists on entitlement to housing element from date of move in to day before current entitlement to housing element starts, then an explicit decision needs to be requested. Of the decision gives entitlement, then again request offsetting and take to appeal if refused.

If the decision on entitlement to housing element for the period in question is refused, then go through the process mandatory reconsideration and appeal and then request both matters - this appeal and overpayment appeal get looked at in same appeal as they are joined.

But again I wouldn't advise medusa80 does this alone, but gets an experienced adviser to help them who understands the issues.

The letter reads…

The overpayment occurred due to the housing costs not being

verified for over two years after you moved into the property. On your claim you was still registered as living

at (address removed)  and the money you received for housing each AP was for this address. Only verified housing can be paid and your current address wasn't verified until September 2023.

The housing costs are now verified for from the date you made the change on your claim 28/09/2023 (AP 01/09/23 - 30/09/23) and you will continue to receive the housing element going forward.

Implying that both decisions have been made.  They have accepted the new address from Sept 2023 and discarded any back dating of the address.  If they had accepted the back dating of the address the letter would have be written so.

I don't read it the same way, I read it as explanation of the overpayment and not necessarily a formal decision regarding entitlement at address b during that period - they do not say that they are unable to verify housing for that period, or that they refuse to, only that only verified housing can qualify for housing element. I accept that my reading may not be correct UC isn't my particular area. But therefore if you're correct a mandatory reconsideration of the decision not to verify address from date of move in and award housing element would be the way to go. And then appeal if that decision is refused, and then link the appeal to the overpayment appeal so both are looked at at the same time.