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Should overpayment stand when claimant has proven reduced capacity.
Hope someone can help with this:
Our client has learning dificulties and her mother was her carer but never “appointee”. Client had a pension from her late father plus Income Support.
Her mother always completed all forms and client signed her name.
Mother passed away in 2009 and client’s sister took over. She assisted client to change tenancy to her own name and apply for Housing Benefit. The sister declared the Pension.
GP has supplied evidence of her “severe mental impairment” since birth for Ctax exemption purposes.
In January 2013 JCP reviewed client’s claim and her sister completed form A2 and again disclosed the pension.
JCP have now raised an overpayment of over £6000 going back to 2006. However, their previous review was done in 1998 so the overpayment would be much more.
A compliance Officer has agreed this is not fraud and no other overpayments have been raised.
We have appealed the decision to recover the overpayment.
Is client responsible for the misrepresentation and recoverability of the overpayment?
Is there any caselaw we can refer to?
Any ideas would be appreciated.
A good discussion of the issues here, albeit in a different context. But you need to read the case of B v DWP.
..However, their previous review was done in 1998 so the overpayment would be much more..
It could, but did she have the pension then? If so, the Dept could potentially attempt a revision of the 1998 decision (based on ignorance or mistake of material fact) but they’d need to prove it which may be difficult without a copy of the 1998 A2. Without the A2 they’d certainly struggle to prove they were ignorant as mum could have declared the pension in the form. Mistake would be easier to prove so the fact they are not going after her from 1998 suggests they either don’t have the A2 from then or client didn’t have the pension when that form was completed. (We’re assuming in all of this, of course, that the pension income was beneficially hers and, if so, that it was not exempt as income under Sch 9).
They’re attempting to re-cover the o/p only from 2006. If there was no review (including completed A2 form) done in 2006 then the entitlement decision under appeal is likely to be a supersession.
If the legal basis of her IS was incapacity then the earliest any supersession based on change of circs (ie receipt of the pension) would be effective from is 10/4/06.
The above comments are directed to the issue of whether it’s possible to stop IS entitlement from 2006. The related overpayment appeal will turn on whether there has been a failure to disclose or misrepresentation.
Re failure to disclose, B V SOS did not change the settled law (in fact it affirmed it) that you cannot fail to disclose a fact you genuinely did not know. Mrs B knew the fact that her children were no longer living with her. She didn’t know the implications (or materiality) of that fact for her benefit entitlement. The Court held that she didn’t need to know about the materiality, just the fact itself. In the present case, did the client know about the existence of the pension or at least the money which it provided. Whose bank was the pension paid into?
If the Dept cannot prove failure to disclose because client did not know the fact, it could try misrep. But two problems for it here:
(i) Is there an A2 form that she signed in 2006? That goes back to the question of whether there was a review done in 2006.
(ii) Does the unavailability, if applicable, of the 1998 A2 adversely affect the DWP’s ability to prove an even later misrepresentation, eg one made in an A2 dated 2006? Depending on the wording of the declaration in any 2006 A2, it may be possible to argue that all the client was representing by signing that declaration was that she had not received any further pension since the one she last declared in 98. Without the 98 form the DWP may again have problems countering such an argument.
Finally, you may want to look at R(IS)4/06 which concerns the doctrine of non est factum (“it is not my deed” or words to that effect). In that case an illiterate claimant signed a claim form and was done for misrep. I’ve not read that case for some time but I recall the claimant lost and that, whilst the Commissioner doubted whether the above doctrine could ever apply in social security cases, he did not completely rule it out.
[ Edited: 9 Oct 2013 at 12:04 am by Tom H ]Many thanks guys
and, re Re B - the Mental Capacity Act wasn’t law then, and i still cannot help but feel that that is relevant…..not to say the decision in RE B might have been different, but the MCA SHOULD be looked at where a person doesn’t have capacity .... IMHO
Hello Jen , I have acted in a number of such cases. If you would like to discuss this case or refer it to me , please feel free to call me on 01582 482000 ext 110 or email me at .(JavaScript must be enabled to view this email address) This is the type of case where there would be grounds to apply for exceptional funding from the LAA.