Income Support Overpayment

Basic situation is this. Client has been receiving Incapacity Benefit and DLA MRC/LRM, as well as a Income Support top up due to Severe Disability Premium. In 2009 a friend moved in with him to help support him. Having gone through the list of situations where somebody can be treated as living alone it appears none of them apply and that the SDP has been being overpaid for the last 3 years.

My query is regarding recoverability. Client accepts that he was overpaid but is aggrieved for two (probably familiar) reasons - that he had told Housing Benefit about the change (and also potentially the DCS whilst renewing DLA) and this should have been sufficient and that he was not aware that his Income Support could be affected by who lived with him. It seems clear to me that the first argument is a non-starter. My understanding of the second is that so long as the DWP have informed you of a duty to disclose a fact there is no question of whether a failure to inform of a change is reasonable or not. However if you have not been informed of this duty then you can use reasonableness arguments.

I’ve been looking at the current IS claim form
- the introductory notes simply state that premiums can be included but gives no detail on how entitlement works to these
- there is a section asking who lives with you, but the form states that this is to assist with calculating housing costs
- the declaration at the end simply tells the claimant that they have to inform DWP of all changes in circs that could affect the benefit, but does not give any guidance as to what these might be.

The award letters sent out detailing IS calculations simply state that you get the SDP ‘because you are severely disabled’ and do not mention anything about living alone.

How strong do people think the argument is that client has not been informed of the duty to inform of changes in household? I’m imagining that the DWP argument would be that they would not be asking for irrelevant information in the claim form and so any changes to the information in that form implicitly have to be reported. I’d potentially counter that the page dealing with other people mentions housing costs and so if you are not getting these you might reasonably treat the page as being irrelevant.

I also suspect that there may well be something hidden away in one of the other letters/leaflets given to claimants, would be interested if anyone is aware of anything. 

Any help/thoughts would be greatly appreciated.

I think you are right to explore whether or not the DWP have informed him of his duty to disclose a particular change of circumstance.  If the DWP did inform that he must tell them if someone moves in, then whether he mistakenly believed that it wouldn’t affect his benefit is irrelevant and would still be in breach of the relevant duty under the claims and payment regulations. The important thing is whether a) he was told that he must declare the change of circs and b) the clarity and unambiguity of that instruction. 

You may know, but there is a useful discussion to this issue in the annotated notes to s71 Social Security Administration Act in the Social Security Law Volumes (Sweet and Maxwell), Vol 3.

However, I would have thought it unlikely that he would not be given something in writing by the DWP saying that he must declare this particular change.  Does the INF4 Form (‘Changes you must tell us about’), inform claimants that they must inform them if someone moves in?  You may need to clarify with your client what he was sent.

Thanks for the quick response. Had a quick google and an old version of the INF4 included people coming to live with you as something you needed to report - I can’t see why they would have amended the form to be less accurate.

Will check with client what he was sent - problem is that this would have been years ago now and he may well not remember. I’d imagine I could end up with a situation where the DWP are saying that INF4s are sent out as a matter of course and the client is saying he didn’t receive it but has no evidence to prove this. Interestingly the DMG states “the DM should only reject a claimant’s evidence when it is self-contradictory, or inherently improbable.” which seems quite generous.