The Income-related Benefits (Subsidy to Authorities) Order 1998

Additions to subsidy E+W+S

18.—(1) Subject to [F1 paragraph (8)], the additions referred to in article 13(1) are—

(a) where following the loss, destruction or non-receipt, or alleged loss, destruction or non-receipt of original instruments of payment of relevant benefit, an authority makes duplicate payments and the original instruments have been or are subsequently encashed, an amount equal to 25 per cent. of the amount of the duplicate payments;

[F2 (b) subject to paragraphs (2) and (3), where, during the relevant year, it is discovered that an overpayment of community charge benefit or relevant benefit has been made and an amount is to be deducted under article 19 in relation to that overpayment, an amount equal to—

(i) in the case of a departmental error overpayment where the overpayment is overpayment of housing benefit, [F3 100 per cent.] of so much of the overpayment as has not been recovered by the authority;

(ii) in the case of a departmental error overpayment where the overpayment is overpayment of community charge benefit or council tax benefit, [F4 100 per cent.] of so much of the overpayment as has not been recovered by the authority;

F5 ( iia ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) [F6 except where heads (i) or (ii) above apply, 40 per cent. of the overpayment;]

F7 ( iv ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(c) where, during the relevant year, it is discovered that an overpayment in respect of which a deduction was made under article 11 or 19 of the 1994 Order, the 1995 Order, the 1996 Order or the 1997 Order (other than a deduction under article 11(1)(g) or 19(1)(c) of the 1994 Order or 11(1)(f) or 19(1)(c) of the 1995, 1996 or 1997 Orders) or, in respect of a year earlier than the relevant year, under article 19 (other than a deduction under article 19(1)(f)), as the case may be, was a fraudulent overpayment, the amount, if any, by which F8 ... [F9 40 per cent.] of any such overpayment exceeds the amount of any subsidy that has been paid in respect of that overpayment;

[F10 (d) where, during the relevant year, it is discovered that an overpayment in respect of which a deduction was made—

(i) under article 19 (other than a deduction under article 19(1)(ea)); and

(ii) in respect of a year which begins after 31st March 2001 and which is earlier than the relevant year,

was a claimant error overpayment, the amount, if any, by which 40 per cent. of any such overpayment exceeds the amount of any subsidy that has been paid in respect of that overpayment.]

[F11 (e) where, during the relevant year, it is discovered that any overpayments of relevant benefit have been made which were authority error overpayments or administrative delay overpayments, the following amounts—

(i) i)where the total of the authority error overpayments and administrative delay overpayments is less than or equal to 0.48% of the total specified subsidy, 100% of the total of those overpayments;

(ii) where the total of the authority error overpayments and administrative delay overpayments is greater than 0.48% but less than or equal to 0.54% of the total specified subsidy, 40% of the total of those overpayments; and

(iii) where the total of the authority error overpayments and administrative delay overpayments is greater than 0.54% of the total specified subsidy, nil.]

[F12 (f) where, during the relevant year, it is discovered that an overpayment in respect of which a deduction was made under article 19 (deductions made in calculating subsidy) was a payment on account overpayment, 100 per cent. of so much of the overpayment as has not been recovered by the authority.]

(2) The amount under paragraph (1)(b) shall not include an amount in relation to—

(a) an authority error overpayment;

(b) any technical overpayment; or

F13 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F14 (d) an administrative delay overpayment;] [F15 or

(e) a payment on account overpayment.]

(3) In the case of a departmental error overpayment, where some or all of that overpayment is recovered by the authority, no addition shall be applicable to the authority in respect of the amount so recovered.

[F16 (4) In paragraphs (1)(b)(i) and (3) and in article 19(1)(e), “departmental error overpayment” means [F17 an overpayment of a kind to which paragraph (4ZA) [F18 or (4ZB)] applies or] an overpayment caused by a mistake made, whether in the form of an act or omission—

[F19 (a) by an officer of the Department for Work and Pensions [F20 or of the Inland Revenue], acting as such, or a person providing services to that Department [F21 or to the Inland Revenue];]

(b) in a decision of an appeal tribunal or a Commissioner,

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 but excludes any mistake of law which is shown to have been an error only by virtue of a subsequent decision of a Commissioner or a court.]

[F22 (4ZA) This paragraph applies to an overpayment where—

(a) the overpayment was made during the period beginning with 5th April 2003 and ending with 13th June 2003 (“the specified period”);

(b) the overpayment would, but for paragraph (4), fall to be regarded as an authority error overpayment on the ground that it was made as a result of a failure by the authority to take account of information about the amount of any tax credit payable to the claimant; and

(c) the Secretary of State is satisfied that the authority took reasonable steps to avoid making overpayments of the kind described in sub-paragraph (b) during the specified period.]

[F23 (4ZB) This paragraph applies to an overpayment where—

(a) during the period beginning on 9th April 2012 and ending on 19th April 2012 (the “specified period”) an authority received a notification through the Automated Transfers to Local Authority System used by the Department for Work and Pensions to provide award data to relevant authorities in respect of a claimant (“the notification”);

(b) the notification received during the specified period was sufficient to require an authority to make a revision or supersession decision on a claimant’s award;

(c) the authority failed to make a revision or supersession decision on the basis of the notification received during the specified period before the next day on which the claimant’s benefit was paid;

(d) the authority’s failure to make a revision or supersession decision before the next day on which the claimant’s benefit was paid resulted in the overpayment; and

(e) the authority made a revision or supersession decision on the claimant’s award, based on the notification received during the specified period, on or before 10th July 2012.]

[F24 (4A) In paragraph [F25 (1)(d) and in article 19(1)(ea)], “claimant error overpayment” means an overpayment [F26 which]—

(a) is caused by—

(i) the claimant, or

(ii) a person acting on the claimant’s behalf under regulation 71 of the Housing Benefit Regulations (who may claim housing benefit) or regulation 61 of the Council Tax Benefit Regulations (who may claim council tax benefit),

failing to provide information in accordance with regulation 72(1), 73 or 75 of, or paragraph 5 of Schedule A1 to, the Housing Benefit Regulations (duties on claimant to provide information) or regulation 62(1), 63 or 65 of, or paragraph 5 of Schedule A1 to, the Council Tax Benefit Regulations (duties on claimant to provide information); and

(b) is not a fraudulent overpayment.]

[F27 (5) In paragraphs (1)(c) and (4A), and in article 19(1)(f), “fraudulent overpayment” means an overpayment in respect of a period falling wholly or partly after 31st March 1993 where the claimant has in respect of the 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 115A of the Act (penalty as an alternative to prosecution) and has not withdrawn that agreement.

(5A) In paragraph (5)(b) “admission after caution” means—

(a) in England and Wales, an admission after a caution has been administered in accordance with a Code issued under the Police and Criminal Evidence Act 1984;

(b) in Scotland, an admission after a caution has been administered, such admission being duly witnessed by two persons.]

[F28 (6) [F29 In paragraphs (1)(e) and (2)(a)], “authority error overpayment” means an overpayment caused by a mistake made, whether in the form of an act or omission, by an authority 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 but excludes any mistake of law which is shown to have been an error only by virtue of a subsequent decision of a court.]

[F30 (6ZA) In paragraphs (1)(e) and (2)(d), “administrative delay overpayment” means an overpayment arising where—

(a) an authority is notified of a change of circumstances and has sufficient information and evidence to make a revision or supersession decision on an award;

(b) the authority does not make the decision before the next day on which the claimant’s benefit is paid or, in the case of council tax benefit, is allowed; F31 ...

(c) the delay was not—

(i) caused by a mistake, whether in the form of an act or omission, by an authority; or

(ii) caused or materially contributed to by the claimant, a person acting on the claimant’s behalf, or any other person to whom payment is made][F32 ; and]

[F33 (d) paragraph (4ZB) is not applicable.]

[F34 (6A) In paragraph (1)(e), “total specified subsidy” means the total amount of housing benefit and council tax benefit that attracts 100 per cent subsidy for the relevant year, including any subsidy paid pursuant to article 14.]

[F35 (7) Subject to paragraph (7A), in paragraph (2)(b) “technical overpayment” means an overpayment which occurs as a result of—

(a) a rebate or council tax benefit being awarded and entitlement to that rebate or benefit being reduced or eliminated because, subsequent to that award, the liability in respect of which the rebate or benefit was awarded was reduced or eliminated; or

(b) council tax benefit being awarded and entitlement to that benefit being reduced or eliminated because, subsequent to that award, there was a change of circumstances that does not fall within paragraph (a).

(7A) A technical overpayment does not include any part of the overpayment occurring—

(a) in a case to which paragraph (7)(a) applies, before the day on which the liability was reduced or eliminated; or

(b) in a case to which paragraph (7)(b) applies, before the day on which the authority suspended, revised or superseded the award, whichever is earliest.

(7B) In paragraphs (1)(f) and (2)(e), “payment on account overpayment” means an amount paid on account under regulation 93 of the Housing Benefit Regulations or regulation 74 of the Housing Benefit (State Pension Credit) Regulations (payment on account of a rent allowance) which is in excess of the entitlement to housing benefit as subsequently decided.]

(8) Except for [F36 paragraphs (1)(b)(iii)], (1)(c) and (5), this article shall not apply to that part of any community charge benefit or relevant benefit in respect of a case to which [F37 paragraph (12) of regulation 83 of the Housing Benefit Regulations, paragraph (13) of regulation 64 of the Housing Benefit (State Pension Credit) Regulations, paragraph (13) of regulation 69 of the Council Tax Benefit Regulations of paragraph (13) of regulation 53 of the Council Tax Benefit (State Pension Credit) Regulations] or paragraph (18) of regulation 60 of the Community Charge Benefits Regulations (time and manner in which claims are to be made), as the case may be, applies.

F38 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F39 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F39 [F40 ( 11 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12) Where, during the relevant year, an overpayment that has been classified as an overpayment under one of paragraphs (4), (4ZA) [F41 , (4ZB)] (4A), (5), (6)[F42 , (6ZA)] or (7) is reclassified, the addition referred to in article 13(1) shall be the amount payable under paragraph (1) for the final classification of the overpayment.]

Textual Amendments

F1 Words in art. 18(1) substituted (with effect in accordance with art. 1(3) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment Order 2010 (S.I. 2010/2481), arts. 1(1), 3(2)

F2 Art. 18(1)(b) substituted (10.5.2000 with effect in accordance with art. 1(3)) by The Income-related Benefits (Subsidy to Authorities) Amendment Order 2000 (S.I. 2000/1091) , arts. 1 , 4(3)

F3 Words in art. 18(1)(b)(i) substituted (with effect in accordance with art. 1(2) of the commencing S.I.) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2006 (S.I. 2006/54) , arts. 1(1) , 3(8)(a)

F4 Words in art. 18(1)(b)(ii) substituted (with effect in accordance with art. 1(2) of the commencing S.I.) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2006 (S.I. 2006/54) , arts. 1(1) , 3(8)(b)

F5 Art. 18(1)(b)(iia) omitted (2.1.2004 with effect in accordance with art. 1(2)) by virtue of Income-related Benefits (Subsidy to Authorities) Amendment Order 2003 (S.I. 2003/3179) , arts. 1(1) , 7(2)

F6 Art. 18(1)(b)(iii) substituted (2.1.2004 with effect in accordance with art. 1(2)) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2003 (S.I. 2003/3179) , arts. 1(1) , 7(3)

F7 Art. 18(1)(b)(iv) omitted (2.1.2004 with effect in accordance with art. 1(2)) by virtue of Income-related Benefits (Subsidy to Authorities) Amendment Order 2003 (S.I. 2003/3179) , arts. 1(1) , 7(2)

F8 Words in art. 18(1)(c) omitted (2.1.2004 with effect in accordance with art. 1(2)) by virtue of Income-related Benefits (Subsidy to Authorities) Amendment Order 2003 (S.I. 2003/3179) , arts. 1(1) , 7(4)

F9 Words in art. 18(1)(c) inserted (13.1.2003 with effect in accordance with art. 1(2)) by Income-related Benefits (Subsidy to Authorities) Amendments (No.2) Order 2002 (S.I. 2002/3116) , arts. 1(1) , 4(2)(d)

F10 Art. 18(1)(d) substituted (2.1.2004 with effect in accordance with art. 1(2)) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2003 (S.I. 2003/3179) , arts. 1(1) , 7(5)

F11 Art. 18(1)(e) substituted (with effect in accordance with art. 1(3) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment Order 2010 (S.I. 2010/2481), arts. 1(1), 3(3)

F12 Art. 18(1)(f) added (with effect in accordance with art. 1(3) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment Order 2011 (S.I. 2011/2957), arts. 1(1), 4(7)(a)

F13 Art. 18(2)(c) omitted (with effect in accordance with art. 1(3) of the commencing S.I.) by virtue of The Income-related Benefits (Subsidy to Authorities) Amendment Order 2011 (S.I. 2011/2957), arts. 1(1), 4(7)(b)(i)

F14 Art. 18(2)(d) and word added (with effect in accordance with art. 1(3) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment Order 2010 (S.I. 2010/2481), arts. 1(1), 3(4)

F15 Art. 18(2)(e) and word added (with effect in accordance with art. 1(3) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment Order 2011 (S.I. 2011/2957), arts. 1(1), 4(7)(b)(ii)

F16 Art. 18(4) substituted (25.9.2000) by The Income-related Benefits (Subsidy to Authorities) Amendment (No. 2) Order 2000 (S.I. 2000/2340), arts 1, 2(d)

F17 Words in art. 18(4) inserted (with effect in accordance with art. 1(2) of the commencing S.I.) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2005 (S.I. 2005/369) , arts. 1(1) , 4(7)(a)

F18 Words in art. 18(4) inserted (with effect in accordance with art. 1(2) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment (No. 2) Order 2013 (S.I. 2013/2989), arts 1, art. 2(1)(a)

F19 Art. 18(4)(a) substituted (27.6.2002) by Secretaries of State for Education and Skills and for Work and Pensions Order 2002 (S.I. 2002/1397), art. 1(2), Sch. para. 31

F20 Words in art. 18(4)(a) inserted (2.1.2004 with effect in accordance with art. 1(2)) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2003 (S.I. 2003/3179) , arts. 1(1) , 7(6)(a)

F21 Words in art. 18(4)(a) inserted (2.1.2004 with effect in accordance with art. 1(2)) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2003 (S.I. 2003/3179) , arts. 1(1) , 7(6)(b)

F22 Art. 18(4ZA) inserted (with effect in accordance with art. 1(2) of the commencing S.I.) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2005 (S.I. 2005/369) , arts. 1(1) , 4(7)(b)

F23 Art. 18(4ZB) inserted (with effect in accordance with art. 1(2) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment (No. 2) Order 2013 (S.I. 2013/2989), art. 1, art. 2(1)(b)

F24 Art. 18(4A) inserted (13.1.2003 with effect in accordance with art. 1(2)) by Income-related Benefits (Subsidy to Authorities) Amendments (No.2) Order 2002 (S.I. 2002/3116) , arts. 1(1) , 4(3)

F25 Words in art. 18(4A) substituted (2.1.2004 with effect in accordance with art. 1(2)) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2003 (S.I. 2003/3179) , arts. 1(1) , 7(7)

F26 Word in art. 18(4A) substituted (with effect in accordance with art. 1(2) of the commencing S.I.) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2005 (S.I. 2005/369) , arts. 1(1) , 4(7)(c)

F27 Art. 18(5)-(5A) substituted for art. 18(5) (with effect in accordance with art. 1(3) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment Order 2010 (S.I. 2010/2481), arts. 1(1), 3(5)

F28 Art. 18(6) substituted (25.9.2000) by The Income-related Benefits (Subsidy to Authorities) Amendment (No. 2) Order 2000 (2000/2340) arts. 1, 2(d)(ii)

F29 Words in art. 18(6) substituted (with effect in accordance with art. 1(2) of the commencing S.I.) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2006 (S.I. 2006/54) , arts. 1(1) , 3(8)(e)

F30 Art. 18(6ZA) inserted (with effect in accordance with art. 1(3) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment Order 2010 (S.I. 2010/2481), arts. 1(1), 3(6)

F31 Word in art. 18(6ZA)(b) omitted (with effect in accordance with art. 1(2) of the commencing S.I.) by virtue of The Income-related Benefits (Subsidy to Authorities) Amendment (No. 2) Order 2013 (S.I. 2013/2989), art. 1, art. 2(1)(c)(i)

F32 Word in art. 18(6ZA)(c)(ii) inserted (with effect in accordance with art. 1(2) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment (No. 2) Order 2013 (S.I. 2013/2989), art. 1, art. 2(1)(c)(ii)

F33 Art. 18(6ZA)(d) inserted (with effect in accordance with art. 1(2) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment (No. 2) Order 2013 (S.I. 2013/2989), art. 1, art. 2(1)(c)(iii)

F34 Art. 18(6A) inserted (with effect in accordance with art. 1(2) of the commencing S.I.) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2006 (S.I. 2006/54) , arts. 1(1) , 3(8)(f)

F35 Art. 18(7)-(7B) substituted for art. 18(7) (with effect in accordance with art. 1(3) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment Order 2011 (S.I. 2011/2957), arts. 1(1), 4(7)(c)

F36 Words in art. 18(8) substituted (10.5.2000 with effect in accordance with art. 1(3)) by The Income-related Benefits (Subsidy to Authorities) Amendment Order 2000 (S.I. 2000/1091) , arts. 1 , 4(6)

F37 Words in art. 18(8) substituted (6.3.2006) by The Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (S.I. 2006/217) , reg. 1(1) , Sch. 2 para. 13(7)(b) (with regs. 2 , 3, Schs. 3, Sch. 4)

F38 Art. 18(9) omitted (with effect in accordance with art. 1(2) of the commencing S.I.) by virtue of Income-related Benefits (Subsidy to Authorities) Amendment Order 2006 (S.I. 2006/54) , arts. 1(1) , 3(8)(g)

F39 Art. 18(10)(11) omitted (with effect in accordance with art. 1(2) of the commencing S.I.) by virtue of Income-related Benefits (Subsidy to Authorities) Amendment Order 2008 (S.I. 2008/196), arts. 1(1), 2(3)(b)

F40 Art. 18(11)(12) inserted (with effect in accordance with art. 1(2) of the commencing S.I.) by Income-related Benefits (Subsidy to Authorities) Amendment Order 2006 (S.I. 2006/54) , arts. 1(1) , 3(8)(h)

F41 Word in art. 18(12) inserted (with effect in accordance with art. 1(2) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment (No. 2) Order 2013 (S.I. 2013/2989), art. 1, art. 2(1)(d)

F42 Word in art. 18(12) inserted (with effect in accordance with art. 1(3) of the commencing S.I.) by The Income-related Benefits (Subsidy to Authorities) Amendment Order 2010 (S.I. 2010/2481), arts. 1(1), 3(7)