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PART 10Excess benefit

Meaning of excess benefit

67.  In this Part “excess benefit” means any amount which as been allowed by way of council tax benefit and to which there was no entitlement under these Regulations (whether on the initial decision [F1or as subsequently revised or superseded or further revised or superseded]) and includes any excess which arises by reason of—

(a)a reduction in the amount a person is liable to pay in respect of council tax in consequence of—

(i)regulations made under section 13 M1 of the 1992 Act (reduction in the amount of a person's council tax); or

(ii)any discount to which that tax is subject by virtue of section 11 or 79 of that Act;

(b)a substitution under sections 31 or 60 or, in Scotland, section 94 of the 1992 Act (substituted amounts) of a lesser amount for an amount of council tax previously set by the relevant authority under section 30 M2 or, in Scotland section 93 M3 of that Act (amount set for council tax).

Textual Amendments

Marginal Citations

M1Amended by the Local Government Act 1999 (c. 27), section 30 and Schedule 1, paragraphs 2 and 3; modified by S.I. 1993/22.

M3Amended by the Local Government etc. (Scotland) Act 1994 (c. 39) section 180(2) and Schedule 14; and by the Local Government in Scotland Act 2003 asp 1, section 41.

Recoverable excess benefit

68.—(1) Any excess benefit, except benefit to which paragraph (2) applies, shall be recoverable.

(2) Subject to paragraph (4) and (5) and excepting any excess benefit arising in consequence of a reduction in tax or substitution to which regulation 67 refers, this paragraph applies to excess benefit allowed in consequence of an official error, where the claimant or a person acting on his behalf or any other person to whom the excess benefit is allowed could not, at the time the benefit was allowed or upon the receipt of any notice relating to the allowance of that benefit, reasonably have been expected to realise that it was excess benefit.

(3) In paragraph (2), “excess benefit allowed 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 for Work and Pensions; or

(ii)the Commissioners for Her Majesty's Revenue and Customs,

acting as such; or

(d)a person providing services to the Department or to the Commissioners referred to in (c),

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) Paragraph (2) shall not apply with respect to excess benefit to which regulation 67(a) and (b) refers.

(5) Where in consequence of an official error a person has been awarded excess benefit, upon the award being revised any excess benefit which remains credited to him by the relevant authority in respect of a period after the date of the revision, shall be recoverable.

Authority by which recovery may be made

69.  The relevant authority which allowed the recoverable excess benefit may recover it.

Persons from whom recovery may be sought

[F270.  Recoverable excess benefit shall be due from the claimant or the person to whom the excess benefit was allowed.]

Textual Amendments

Methods of recovery

71.—(1) Without prejudice to any other method of recovery a relevant authority may recover any recoverable excess benefit F3... by any of the methods specified in paragraph (2) and (3) or any combination of those methods.

(2) Excess benefit may be recovered F4...—

(a)by payment by or on behalf of the [F5claimant or the person to whom the excess benefit was allowed]; or

(b)by an addition being made by the relevant authority to any amount payable in respect of the council tax concerned.

[F6(3) Where recoverable excess benefit cannot be recovered by either of the methods specified in paragraph (2), the relevant authority may request the Secretary of State to recover the outstanding excess—

(a)from the benefits prescribed in regulation 75(1); or

(b)where the claimant has one or more partners, from the benefits prescribed in regulation 75(1A), provided that the claimant and that partner were a couple both at the time the excess benefit was allowed and when the deduction is made.]

Textual Amendments

Further provision as to recovery of excess benefit

72.  In addition to the methods for recovery of excess benefit which are specified in regulation 71, any sum or part of a sum which is due from the person concerned and which is not paid within 21 days of his being notified of the amount that is due, shall be recoverable in a court of competent jurisdiction by the authority to which the excess benefit is due.

Diminution of capital

73.—(1) Where in the case of recoverable excess benefit, 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 68(2) (effect of official error) refers, as to the amount of a person's capital, the excess benefit was in respect of a period (“the excess benefit period”) of more than 13 benefit weeks, the relevant authority shall, for the purpose only of calculating the amount of excess—

(a)at the end of the first 13 benefit weeks of the excess benefit period, treat the amount of the capital as having been reduced by the amount of excess council tax benefit allowed during those 13 weeks;

(b)at the end of each subsequent period of 13 benefit weeks, if any, of the excess benefit period, treat the amount of that capital as having been further reduced by the amount of excess council tax benefit allowed 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 excess benefit

74.—(1) In calculating the amount of recoverable excess benefit, the relevant authority shall deduct any amount of council tax 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 had been notified at the time that change occurred.

(2) In calculating the amount of recoverable excess benefit, the relevant authority may deduct so much of any payment of council tax in respect of the excess benefit period which exceeds the amount, if any, which the claimant was liable to pay for that period under the original erroneous decision.

Recovery of excess benefit from prescribed benefits

75.—(1) [F7Subject to paragraph (1B),] for the purposes of section 76(3)(c) of the Administration Act (deduction of excess council tax benefit from prescribed benefits), the benefits prescribed by this regulation are—

(a)any benefit payable under the Act, except guardian's allowance or housing benefit;

(b)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 M4 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;

(c)a jobseeker's allowance;

(d)state pension credit.

[F8(e)an employment and support allowance.]

[F9(1A)  For the purposes of paragraph (1)(b) 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. ]

[F10(1B) For the purposes of section 76(3)(c) of the Administration Act, where recovery is sought from the claimant’s partner under regulation 71(3)(b), the benefits prescribed by this regulation are—

(a)income support under Part 7 of the Act;

(b)income-based jobseeker’s allowance;

(c)state pension credit; and

(d)income-related employment and support allowance.]

[F11(2) The Secretary of State shall, if requested to do so by a relevant authority under regulation 71 (methods of recovery), recover excess benefit by deduction from any of the benefits prescribed in paragraph (1) or (in the case of the claimant’s partner) any of the benefits prescribed in paragraph (1B) provided that the Secretary of State is satisfied that—

(a)recoverable excess benefit has been allowed in consequence of a misrepresentation of or a failure to disclose a material fact (in either case whether fraudulently or otherwise), by a claimant or any other person to whom council tax benefit has been allowed; and

(b)the person from whom it is sought to recover the excess benefit is receiving sufficient amounts of any of the benefits prescribed in paragraph (1) or (1B) (as the case may be) to enable deductions to be made for the recovery of the excess.]

Textual Amendments

Marginal Citations

M4O.J. No. L149, 5.7.1971; Regulations No. 1408/71 and No. 574/72 were restated in amended form in Regulation No. 2001/83 (O.J. No. L230, 22.8.1983), and further amended by Council Regulation (EEC) No. 1661/85 (O.J. No. L160, 20.6.1985) and Commission Regulation (EEC) No. 513/86 (O.J. No. L51, 28.2.1986).