DLA - failure to disclose material fact

Hi all,
Can anyone help?
I’ve been reliably informed that there is case law available in relation to “failure to disclose a material fact”  where the claimant was unable and unaware of the material fact. In this case it was due to being in hospital.

Any help would be appreciated

Thanks

You can’t fail to disclose something you don’t know.
Try R(IS) 9/06, which is actually Court of Appeal following a Tribunal of Commissioners

Ariadne, I’ll have a look at that case law, thanks.

Tony, yes its my intention to argue due to the nature of ill health that they were unaware they were in hospital.

Thanks for the replies.

I had a client overpaid several months of DLA while sectioned under the mental health act. The tribunal held that even though delusional and generally incapable of managing his affairs, he was nevertheless aware that he was in a hospital, and so the overpayment was recoverable. Seemed a tough test to pass, even with no one else available to handle the patient’s benefit affairs at the time.

course if the person is unconscious in hospital, s/he would not know they were in hospital.  surely the law would not then require disclosure since ipso facto you are also incapable, as well as ignorant and unconscious?

R(IS)9/06 is the lead case on failure to disclose, but you might also want to consider R(IB)4/07 another Court of Appeal ruling this time allowing an appeal from the decision of Mr Commissioner Jacobs as then was in CIB/1146/2005.  The Court held that it was inumbent on the Secretary of State to give clear and unambigusous instructions to claimants, in that case it was held that the word “should”  was too vague and if the SOS was imposing a mandatory requiremen he must say so in no uncrtain terms.

One thing that strikes me in this case though is that DLA is not lost until the person has been an inpatient for 28 days.  What if that person’s condition means that he loses his sense of time? 

Even though R(IS)9/06 made life more difficult for those defending allegations of failure to disclose, its still the case that there can be no failurre to disclose what is not known (see also Sharples v Chief Adjudication Officer [reported as R(IS)7/94]  and Franklin v Chief Adjudication Officer [reported as R(IS)16/96])

Oh dear! This is a can of worms that we have been addressing for some considerable time. Many of our client group find themselves detained in hospital under a Section of the Mental Health Act.  In the past ans present we have argued successfully with DMs that it was not reasonable for our clients to have made a disclosure due to issues of mental capacity.

In the sure and certain knowledge that ultimately it is a claimant’s responsibility (or appointee if appropriate) to make a disclosure after 28 days in hospital, this is, for whatever reason, sometimes not done. We are currently in debate as to who might bear the responsibility of disclosure should the claimant not have the capacity to do it themselves. On the one hand there is an expectation that a ward clerk should do so, in reality some do and some don’t think it is their duty to do - historically when the Department of Health and the Department of Social Security were one [D.H.S.S.] it may have been the duty of the ward clerk as they were an employee of the D.H.S.S.  This of course is no longer the case. On the other hand it could be those charged with a person’s care such as a CPN, SW or care coordinator. The question then arises as to issues of confidentiality. Should it be that any of these people make the disclosure, have they then breached a patient’s confidentiality? It is suggested that they may well have.

In an attempt to overcome this unfortunate sequence of events, we have produced a pro-forma that will provide authority to make such a disclosure in the event of our client being hospitalised at some time in the future. This could be completed, with of course the consent of the client, while they are in the community and when they have the mental capacity to give such authority. This possibility is now subject to a policy decision.

Though this would seem a logical way forward, it is fraught with danger should we then fail to make a disclosure. It would then be possible for the client to point the DWP debt management people in our direction for any recovery as we would then bear the responsibility of disclosure under a Section 71.

The debate will, no doubt, continue. Does anyone out there have any definitive answers to this thorny issue?

Not so much an answer but an example of good practice.

Our local MH hospital routinely asks patients for consent to disclose information to the DWP as son as they arrive and write to DLA etc to let them know of the patient’s admission and discharge. I have had dealings with this hospital since the mid 1990s and I have never seen a recoverable overpayment of DLA due to failure to disclose for any patient from this hospital.

I take the point that the approaches to this vary from hospital to hospital but our local hospital’s procedure is so trouble free and simple that I would like to think it might become standard practice throughout the NHS.