PART XIEXCESS BENEFITS

Meaning of excess benefits

83.  In this Part “excess benefits” means any amount which has been allowed by way of community charge benefits and to which there was no entitlement under these Regulations (whether on initial determination or as subsequently revised on review or further review).

Recoverable excess benefits

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

(2) This paragraph applies to excess benefits 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 benefits are allowed could not, at that time, reasonably have been expected to realise that they were excess benefits.

(3) In paragraph (2), “excess benefits allowed in consequence of an official error” means excess benefits in consequence of a mistake made or something done or omitted to be done by the appropriate authority or by an officer or person acting for that authority or by an officer of the Department of Social Security or the Department of Employment acting as such where the claimant, a person acting on his behalf or any other person to whom the payment is allowed did not cause or materially contribute to that mistake, act or omission.

Authority by which recovery may be made

85.  The appropriate authority which allowed the recoverable excess benefits may recover them.

Person from whom recovery may be sought

86.—(1) Subject to paragraph (2) recoverable excess benefits shall be due from the claimant or the person to whom the excess benefits were allowed.

(2) Where recoverable excess benefits are allowed to a claimant who has one or more partners, recovery of the excess may be made by deduction from any community charge benefits allowed to a partner, provided that the claimant and that partner were members of the same household both at the time that the excess benefits are allowed and when the deduction is made.

Methods of recovery

87.—(1) Without prejudice to any other method of recovery an appropriate authority may recover any recoverable excess benefits due from any persons referred to in regulation 86(1) (person from whom recovery may be sought) by any of the methods specified in paragraphs (2), (3) and (5) or any combination of those methods.

(2) In the case of excess benefits on account of personal community charges recovery may be either–

(a)by payment by or on behalf of the person to whom regulation 86(1) refers, or

(b)by an addition being made by the appropriate authority to any amount payable in respect of the charge concerned.

(3) In the case of excess benefits in respect of a contribution period, recovery may be by payment being made to the appropriate authority by or on behalf of the person to whom regulation 86(1) refers.

(4) In a case to which paragraph (3) refers no adjustment of liability shall be made as between the person concerned and the charge payer or as between the charge payer and the appropriate authority.

(5) Where recoverable excess benefits due from any person cannot be recovered by any of the methods specified in paragraphs (2) and (3), the appropriate authority may request the Secretary of State to recover the outstanding excess from the benefits prescribed in regulation 91 in accordance with the provisions of that regulation.

Further provision as to recovery of excess benefits

88.  In addition to the methods for recovery of excess benefits which are specified in regulation 87, 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 benefits are due.

Diminution of capital

89.—(1) Where in the case of recoverable excess benefits, 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 84(2) (effect of official error) refers, as to the amount of a person’s capital, the excess benefits were in respect of a period (“the excess benefits period”) of more than 13 benefit weeks, the appropriate authority shall, for the purpose only of calculating the amount of the excess–

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

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

90.  In calculating the amount of recoverable excess benefits, the appropriate authority–

(a)if it determines that a lesser amount was properly allowable in respect of the whole or part of the excess benefits period, shall deduct that amount; and

(b)may deduct so much of any payment of personal community charge or collective community charge contribution in respect of the excess benefits period which exceeds the amount, if any, which the claimant was liable to pay for that period under the original erroneous determination.

Recovery of excess benefits from prescribed benefits

91.—(1) For the purposes of section 31D(3)(c) and (5)(b) of the Act(1) (deduction of excess community charge benefits from other benefits), the benefits prescribed by this regulation are–

(a)any benefit under the Social Security Act, except those specified in paragraph (2);

(b)income support or family credit under Part II of the Act;

(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(2) 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.

(2) Benefits excepted from paragraph (1)(a) are guardian’s allowance, attendance allowance in respect of a child under section 35(1) to (4) of the Social Security Act(3) as modified by regulation 6 of the Social Security (Attendance Allowance) (No. 2) Regulations 1975(4) and housing benefit under Part II of the Act.

(3) Where the Secretary of State is satisfied that:–

(a)recoverable excess benefits have been allowed in consequence of a misrepresentation of or failure to disclose a material fact (in either case whether fraudulent or otherwise), by a claimant or any other person to whom community charge benefits have been allowed; 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 excess,

he shall, if requested to do so by an appropriate authority under regulation 87 (methods of recovery) recover the excess by deduction from any of those benefits.