Local authority failure to exercise discretion when deciding whether to recover a housing benefit overpayment

Use this template if all the following apply

• Your client has a recoverable overpayment of housing benefit which is being recovered
• Your client has asked the council/local authority to write it off due to their circumstances and provided evidence
• The council/local authority has refused and in doing so has not taken into account the claimant’s personal circumstances

This letter assumes that (so can be changed)

• Your client has a tribunal decision recommending that the overpayment is not recovered due to their personal circumstances

When not to use

Do not use this letter if:

• your client has not asked in writing for the overpayment not to be recovered and provided evidence; or
• the council/local authority has explained why the evidence provided by your client and the tribunal decision have not caused them to write off the overpayment (ie, taken this evidence into account)
• the overpayment is not recoverable, in which case your client should appeal 

The main legal arguments in this template are:

• Housing Benefit overpayments not caused by official error are “recoverable” under regulation 100 Housing Benefit Regulations 2006 (HB Regs).
• The wording of regulation 100 HB Regs makes it clear that local authorities have the discretion to either recover or not recover HB overpayments. Local authorities have the power to recover, ie, to recover or not.
• The HB overpayments guide, Part 4: ‘recovery of overpayments’ confirms this unequivocally, warning local authorities that they must exercise their discretion to avoid being open to legal challenge.
• The council/local authority has provided no information or evidence to suggest that any consideration of whether or not to recover the claimant’s overpayment was carried out before reaching the decision to recover the overpayment, and as such an inference can be drawn that the council/local authority unlawfully failed to exercise the discretion available to it under Reg 100 HB Reg.

Information about your client

• name
• address
• national insurance number (NINO)
• date of birth

Background facts

Such as:

• your client's family circumstances, household, disability, other benefits
• the reason for the overpayment, including any official error (though if solely official error note the overpayment will not be recoverable and your client should appeal)
• the impact of recovery on your client, eg:
  • debts incurred
  • essential expenditure not met
  • food bank use
  • impact on mental health 

Information relating to the decision

• the date of the decision that your client was overpaid HB
• the date of your client’s appeal of the overpayment
• the date of the appeal decision and what it said
• the date and how your client asked for the overpayment not to be recovered
• the evidence your client provided to support their request
• the date and how the council/local authority responded

We've created this guide to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.