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Joint Committee on Statutory Instruments Fifteenth Report


Memorandum by the Department of Social Security


  1. The Committee has asked for a Memorandum on the following point:

  "Regulation 3(3)(a) requires the authority, in a case to which paragraph (2) applies, to notify the landlord and tenant that the overpayment that it has recovered or that it has determined to recover was one to which paragraph (2) applies. Explain why the italicised words have been included, given that paragraph (2) applies in a case where the amount has been recovered from the landlord."."

  2. The circumstances in which regulation 3(2) would apply are relatively limited. It is unlikely that a conviction will occur in relation to an overpayment of Housing Benefit until some time after the identification of the overpayment, by when much, perhaps all of it, would have been recovered. Even where somebody has agreed to pay a penalty, pursuant to section 115A(4) of the Social Security Administration Act 1992 (penalty as an alternative to prosecution), it is likely that some at least of the overpayment will have been recovered before that agreement. Also, as the consequence of paragraph (2) applying is that a tenant's liability is discharged notwithstanding a deduction from the payments to his landlord, that discharge cannot occur unless and until a relevant payment from which the overpayment is being deducted is made (or, should there be a 100 per cent deduction, would have been made) thereby effecting a recovery. The past tense is therefore correct as far as paragraph (2) goes.

  3. The point which is giving the Committee concern derives from the wording of paragraph (3). The desire was that, as soon as it had become clear that this was a case to which paragraph (2) would apply once the amount was recovered, the authority was then to notify both landlord and tenant that paragraph (2) is or would be applicable. The use of the present tense was intended to achieve that purpose.

  4. However, prompted by the Committee's letter of 19 November on the above regulation, the Department appreciates that the wording of paragraph (3) is at best ambiguous. As paragraph (3) is only a notification procedure and local authorities will be acting perfectly properly in notifying, even if not obliged to do so, no substantive legal rights are involved. Nonetheless, the Department undertakes to amend paragraph (3), so as unequivocally to reflect the above intention, at the earliest opportunity and is grateful to the Committee to drawing this matter to their attention.

November 1997

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