The Housing Benefit Regulations (Northern Ireland) 2006

PART XIII Overpayments

Meaning of overpayment

96.  In this Part, “ overpayment” means any amount which has been paid by way of housing benefit and to which there was no entitlement under these Regulations including any excess of rebate (whether on the initial decision or as subsequently revised or superseded or further revised or superseded) and includes any amount paid on account under regulation 90 which is in excess of the entitlement to housing benefit as subsequently decided.

Recoverable overpayments

97.—(1) Any overpayment, except one to which paragraph (2) applies, shall be recoverable.

(2) Subject to paragraph (4), this paragraph applies to an overpayment which arose in consequence of an official error where the claimant or a person acting on his behalf or any other person to whom the payment is made could not, at the time of receipt of the payment or of any notice relating to that payment, reasonably have been expected to realise that it was an overpayment.

(3) In paragraph (2), “overpayment which arose in consequence of an official error” means an overpayment caused by a mistake made whether in the form of an act or omission by—

(a) the relevant authority;

(b) an officer or person acting for that authority;

(c) an officer of—

(i) the Department;

(ii) the Department for Employment and Learning;

(iii) Revenue and Customs,

acting as such; or

(d) a person providing services to either Department mentioned in sub-paragraph (c) or to the Commissioners for Her Majesty’s Revenue and Customs,

where the claimant, a person acting on his behalf or any other person to whom the payment is made, did not cause or materially contribute to that mistake, act or omission.

(4) Where in consequence of an official error, a person has been awarded rent rebate or rate rebate or both to which he was not entitled or which exceeded the benefit to which he was entitled, upon the award being revised or superseded any overpayment of benefit, which remains credited to him by the relevant authority in respect of a period after the date on which the revision or supersession took place, shall be recoverable.

Person from whom recovery may be sought

98.—(1) For the purposes of section 73(3)(a) of the Administration Act(1) (prescribed circumstances in which an amount recoverable shall not be recovered from the person to whom it was paid), the prescribed circumstance is—

(a) housing benefit has been paid to a landlord in accordance with regulation 92 or 93;

(b) the landlord has notified the Executive or the Department in writing that he suspects that there has been an overpayment;

(c) the Executive is satisfied that the overpayment did not occur as a result of any change of dwelling occupied by the claimant as his home;

(d) it appears to the Executive that, on the assumption that there has been an overpayment—

(i) there are grounds for instituting proceedings against any person for an offence under section 105A(2) or 106(1)(3) of the Administration Act (dishonest or false representations for obtaining benefit), or

(ii) there has been a deliberate failure to report a relevant change of circumstances contrary to the requirement of regulation 84 and the overpayment occurred as a result of that deliberate failure; and

(e) the Executive is satisfied that the landlord—

(i) has not colluded with the claimant so as to cause the overpayment;

(ii) has not acted, or neglected to act, in such a way so as to contribute to the period, or the amount, of the overpayment.

(2) For the purposes of section 73(3)(b) of the Administration Act (recovery from such other person, as well as or instead of the person to whom the overpayment was made), where recovery of an overpayment is sought by the Executive—

(a) the prescribed person from whom it is sought shall be—

(i) in a case where an overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact (in either case, whether fraudulently or otherwise) by or on behalf of the claimant or any other person to whom housing benefit has been paid, the person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made;

(ii) in a case where an overpayment arose in consequence of an official error where the claimant or a person acting on his behalf or any other person to whom the payment has been made could reasonably have been expected, at the time of receipt of the payment or of any notice relating to that payment, to realise that it was an overpayment, that person instead of, if different, the person to whom the payment was made; or

(b) where sub-paragraph (a)(i) and (ii) do not apply, the prescribed person from whom it is sought is—

(i) the claimant;

(ii) in a case where a recoverable overpayment is made to a claimant who has one or more partners, the claimant’s partner or any of his partners.

(3) For the purposes of paragraph (1), “landlord” shall have the same meaning as it has for the purposes of regulation 92.

(4) For the purposes of paragraph (2)(a)(ii), “overpayment arose in consequence of an official error” shall have the same meaning as in regulation 97(3).

(5) For the purposes of paragraph (2)(b)(ii), recovery of the overpayment may be by deduction from any housing benefit payable to a partner provided that the claimant and that partner were members of the same household both at the time of the overpayment and when the deduction is made.

Method of recovery

99.—(1) Without prejudice to any other method of recovery, a relevant authority may recover a recoverable overpayment from any person referred to in regulation 98 by deduction from any housing benefit to which that person is entitled (including arrears of entitlement after offsetting under regulation 95) or, where it is unable to do so, may request the Department to recover any recoverable overpayment from the benefits prescribed in regulation 102.

(2) Where—

(a) a claimant has moved into a dwelling which he occupies as his home;

(b) a recoverable overpayment of housing benefit is thereafter made direct to him in connection with the dwelling he occupied as his home immediately preceding the date he moved to that dwelling; and

(c) the relevant authority which made the recoverable overpayment is paying housing benefit to that claimant in respect of that new dwelling,

the relevant authority may at its discretion deduct from the housing benefit it is paying to the claimant in respect of a benefit week an amount equal to the claimant’s weekly entitlement to housing benefit at his new dwelling, and may do so for the number of benefit weeks equal to the number of weeks during which the claimant was overpaid housing benefit.

(3) Subject to paragraphs (2), (5) and (6), where the Executive makes deductions permitted by paragraph (1) from the housing benefit in respect of rent it is paying to a claimant (other than deductions from arrears of entitlement), the deduction in respect of a benefit week shall be—

(a) in a case to which paragraph (4) applies, not more than the amount there specified; and

(b) in any other case, not more than 3 times 5 per cent. of the personal allowance for a single claimant aged not less than 25, that 5 per cent. being, where it is not a multiple of 5 pence, rounded to the next higher such multiple.

(4) Where the Executive makes deductions from housing benefit in respect of rent it is paying to a claimant who has, in respect of the whole or part of the recoverable overpayment—

(a) been found guilty of an offence whether under a statute or otherwise;

(b) made an admission after caution of deception or fraud for the purpose of obtaining relevant benefit; or

(c) agreed to pay a penalty under section 109A of the Administration Act(4) (penalty as alternative to prosecution) and the agreement has not been withdrawn,

the amount deducted under paragraph (3) shall be not more than 4 times 5 per cent. of the personal allowance for a single claimant aged not less than 25, but where that 5 per cent. is not a multiple of 10 pence, it shall be rounded to the nearest 10 pence or, if it is a multiple of 5 pence but not of 10 pence, the next higher multiple of 10 pence.

(5) Where, in the calculation of housing benefit in respect of rent, the amount of earnings or other income falling to be taken into account is reduced by reason of paragraphs 3 to 10 of Schedule 5 or paragraph 14, 15 or 16 of Schedule 6, the deduction under paragraph (3) may be increased by not more than half the amount of the reduction.

(6) No deduction made under this regulation, except as made under paragraph (2), shall be applied so as to reduce the housing benefit in respect of a benefit week to less than 50 pence.

(7) In this regulation—

“admission after caution” means an admission after a caution has been administered in accordance with a Code issued under the Police and Criminal Evidence (Northern Ireland) Order 1989(5);

“personal allowance for a single claimant aged not less than 25” means the amount specified in paragraph 1(1)(b) of column (2) of Schedule 4.

(8) This regulation shall not apply in respect of an offence committed or an admission after caution or an agreement to pay a penalty made before 2nd October 2000.

Diminution of capital

100.—(1) Where in the case of a recoverable overpayment, in consequence of a misrepresentation or failure to disclose a material fact (in either case whether fraudulent or otherwise) as to a person’s capital, or an error, other than one to which regulation 97(2) refers, as to the amount of a person’s capital, the overpayment was in respect of a period (“the overpayment period”) of more than 13 benefit weeks, the relevant authority shall, for the purpose only of calculating the amount of that overpayment—

(a) at the end of the first 13 benefit weeks of the overpayment period, treat the amount of that capital as having been reduced by the amount of housing benefit overpaid during those 13 weeks;

(b) at the end of each subsequent period of 13 benefit weeks, if any, of the overpayment period, treat the amount of that capital as having been further reduced by the amount of housing benefit overpaid during the immediately preceding 13 benefit weeks.

(2) Capital shall not be treated as reduced over any period other than 13 benefit weeks or in any circumstances other than those for which paragraph (1) provides.

Sums to be deducted in calculating recoverable overpayments

101.—(1) Subject to paragraph (2), in calculating the amount of a recoverable overpayment, the relevant authority shall deduct any amount of housing benefit which should have been determined to be payable in respect of the whole or part of the overpayment period—

(a) on the basis of the claim as presented to the authority;

(b) on the basis of the claim as it would have appeared had any misrepresentation or non-disclosure been remedied before the decision; or

(c) on the basis of the claim as it would have appeared if any change of circumstances, except a change of the dwelling which the claimant occupies as his home, had been notified at the time that change occurred.

(2) In the case of rent or rate rebate only, in calculating the amount of a recoverable overpayment the relevant authority may deduct so much of any payment by way of rent or rates in respect of the overpayment period which exceeds the amount, if any, which the claimant was liable to pay for that period under the original erroneous decision.

Recovery of overpayments from prescribed benefits

102.—(1) For the purposes of section 73(4) of the Administration Act (recovery of overpaid housing benefit by deduction from other benefits), the benefits prescribed by this regulation are—

(a) any benefit except guardian’s allowance;

(b) income support;

(c) any benefit payable under the legislation of any member State other than the United Kingdom concerning the branches of social security mentioned in Article 4(1) of Regulation (EEC) No. 1408/71(6) on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, whether or not the benefit has been acquired by virtue of the provisions of that Regulation;

(d) a jobseeker’s allowance;

(e) state pension credit.

(2) For the purposes of paragraph (1)(c) the term “member State” shall be understood to include Switzerland in accordance with and subject to the provisions of Annex II of the Agreement between the European Community and its member States and the Swiss Confederation on the free movement of persons, signed at Brussels on 21st June 1999(7).

(3) Where the Department is satisfied that—

(a) a recoverable overpayment of housing benefit has been made, in consequence of a misrepresentation of or failure to disclose a material fact (in either case whether fraudulently or otherwise), by or on behalf of a claimant or any other person to whom a payment of housing benefit has been made; and

(b) the person who misrepresented that fact or failed to disclose it is receiving a sufficient amount of one or more of the benefits prescribed in paragraph (1) to enable deductions to be made for the recovery of the overpayment,

it shall, if requested to do so by an authority under regulation 99, recover the overpayment by deduction from any of those benefits.

(4) In paragraph (1)(a), “benefit” has the meaning it has in section 121(1) of the Act.

Prescribed benefits

103.—(1) The benefits prescribed for the purposes of section 73(5) and (7) of the Administration Act(8) (recovery of overpayments) are those set out in the following paragraphs.

(2) Prescribed benefits within section 73(5)(a) of the Administration Act (benefits to which a landlord or agent is entitled) are—

(a) housing benefit; and

(b) those benefits prescribed from time to time in regulation 102(1), but only in cases where—

(i) the Executive has, pursuant to regulation 99, requested the Department to recover an overpayment of housing benefit from such benefits, and

(ii) the Department is satisfied as to the matters prescribed in paragraph (3)(a) and (b) of regulation 102.

(3) Housing benefit is prescribed for the purposes of section 73(5)(b) or (c) of the Administration Act (benefits paid to a landlord or agent to discharge an obligation owed by another person).

(4) Prescribed benefits within section 73(7) of the Administration Act (benefits recoverable from the county court) are housing benefit and those benefits prescribed from time to time in regulation 102(1).

Restrictions on recovery of rent and consequent modifications

104.—(1) Where, pursuant to section 73(5)(b) of the Administration Act, an amount has been recovered by deduction from housing benefit paid to a person (referred to as “ the landlord” in this regulation) to discharge (in whole or in part) an obligation owed to him by the person on whose behalf the recoverable amount was paid (referred to as “the tenant” in this regulation) that obligation shall, in a case to which paragraph (2) applies, be taken to be discharged by the amount of the deduction.

(2) This paragraph applies in a case where the amount recoverable from the landlord relates to an overpayment of housing benefit in relation to which the landlord has—

(a) agreed to pay a penalty pursuant to section 109A of the Administration Act; or

(b) been convicted of an offence arising under the Act or any other statutory provision.

(3) In any case to which paragraph (2) applies or will apply when recovery is made the Executive shall notify both the landlord and the tenant that—

(a) the overpayment that it has recovered or that it has determined to recover (“that sum”) is or will be one to which paragraph (2) applies; and

(b) the landlord has no right in relation to that sum against the tenant, and that his obligation to the landlord shall be taken to be discharged by the amount so recovered.

(1)

Section 73(3) was substituted by section 62 of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4 (N.I.))

(2)

Section 105A was inserted by Article 12 of the Social Security Administration (Fraud) (Northern Ireland) Order 1997 (S.I. 1997/1182 (N.I. 11)) and amended by paragraph 5 of Schedule 6 and Part V of Schedule 9 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 and section 15(1) of the Social Security Fraud Act (Northern Ireland) 2001 (c. 17 (N.I.))

(3)

Section 106(1) was amended by paragraph 3(2) of Schedule 1 to the Social Security Administration (Fraud) (Northern Ireland) Order 1997 and paragraph 6 of Schedule 6 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000

(4)

Section 109A was inserted by Article 14 of the Social Security Administration (Fraud) (Northern Ireland) Order 1997 and amended by section 13 of the Social Security Fraud Act (Northern Ireland) 2001

(5)

S.I. 1989/1341 (N.I. 12)

(6)

O.J. No. L149, 5.7.71, p.2; Regulation No. 1408/71 was restated in amended form in Regulation No. 118/97 (O.J. No. L28, 30.1.97, p.1)

(7)

Cm 4904

(8)

Subsections (5) and (7) were added by Article 15 of the Social Security Administration (Fraud) (Northern Ireland) Order 1997