LA Seeking to Recover HB Overpayment - Help!

[diablo96]

All,

I could really do with some assistance in this matter. I had a couple of DSS tenants living in my flat during 2007/8. They left in Sep 2008 and I relet the property. In early 2009, I started receiving claims for HB overpayment stating the tenants had left in March 2008. They are trying to claim £2300. My position is that rent was lawfuly due and they were residing at the property. the LA is saying that they have information from the DWP and a letter from the tenant saying that they moved out in March 2008.

I have written to the LA (outsourced to Liberata) on a number of occasions telling them that these people lived there however, they have now said that they will pass this to a debt collection agency. I have asked for a decision notice and statement of reasons. The LA also said that I should get a signed statement from these former tenants, which is totally bonkers...

I have spoken to my tenants and neighbours and they all recall these people living there. Their immediate neighbour is prepared to sign an affidavit and the others are prepared to sign statements to confirm my side of the story. I am also trying to get hold of a contractor who did some plumbing there during this period.

In your experience, should this evidence be sufficient to convince the LA of the truth? Is there anything else I should be doing?

The matter is coming to a head, so your help would be greatly appreciated!

[havensRus]

Do you have any proof at all of when the tenants actually left-for example, signed checkout inventory or any written/communication with/from them?

You should get witness statements from the neighbours who can confirm that the T were in occupation at the time and send copies, together with anything else that might help, to the council. Paperwork has been known to go missing mysteriously, so keep originals and send copies.

It is usually advised that you ask for a "written statement of reasons", and it seems you have already done that -have you received it yet?

Unless you can prove otherwise, then the council will continue to try to get the alleged overpayment from you because they deem that you would have been expected to realise there was an overpayment due to the change in the T's circumstances, that is that the T was no longer residing at the property.

You could also appeal the decision, and you should request an appeal form if that's the case.

[hbadvocacy]

Cases like this are quite commonplace and it's normal for the LA to pursue the LL, rather than the tenant(s) because by doing so it is more likely to recover the overpaid sum and collect the 40% subsidy bonus for doing so.

Ask for a copy of the OP determination notice and take it along to one of the local law centres or welfare rights offices. Many of the LA notices are flawed, due to lack of detail, and a failure to comply with schedule of information that is statutorily required to constitute an 'effective' notice. Someone with knowledge of these matters might unearth your escape route.

Alternatively, if it's within 13 months of the determination ask for a review, supply all the information from the neighbours etc. In April 2006 the rules changed when recovery is sought. From this date recovery should be pursued from whoever failed to disclose the material fact (tenant's departure from tenancy) that created the OP. The onus of proof lies with the LA. Your tenant clearly will be caught by the provisions. You might be viewed as culpable as well unless you can convince the LA (and Tribunal) your story is true. In situations where the LL and tenant are both considered culpable the LA has the right to pursue both or select one, rather than the other, and there's no appeal against this element of the decision.

If I were you, I'd seek assistance with this complicated issue if you intend to fight the decision.

Good luck!

[quarterday]

Most people will disagree, but it is our practice to request benefits to be paid to the tenant and the tenant to pay us.

Otherwise Local Authorities will commonly pursue the landlord rather than the previous tenant if it subsequently comes to their attention that, unbeknown to the landlord, the benefits were incorrectly paid. The commonest reason is that a single mum is later said to have had a man in employment cohabiting, or that children became 18 years of age and the Local Authority was not notified that the benefit claim should be adjusted downwards.

Interestingly some local authorities such as RBKC will only pursue landlords for refunds of benefits if it is clear that the landlord was aware that the benefits were paid when not due, in circumstances such as the tenancy having ended; other LAs are more bullish and will deduct what they class to be overpayments from other benefits paid through the same managing agent and in respect of an entirely different letting, and even in respect of different landlords. I have no idea whether the LA is entitled in law so to do, but do it they do!