IS Overpayment - Clerical error or incorrect procedures applied?

Hi all,

Sorry this is a bit long winded, but would be grateful for some thoughts on how this case can be challenged. 

Client was receiving Incapacity benefit (Credits only) from 06/09/2007.  She was paid as a single person as her husband was waiting for confirmation of his status in the UK from the Home Office and had no recourse to public funds.

On 11/03/2008 client attended a medical assessment, consequently on 12/03/2008 a decision maker determined that the client was to be treated as capable of work. Client appealed against the decision and the appeal was referred to the income support department 12/05/2008.  Client continued to be paid IS at a reduced rate because she satisfied Regulation 22a. Client heard no more.

On 14/02/2011 the income support decision maker received the form LT54 from a customer compliance officer. It was at this point that the decision maker noticed that there had not been an outcome decision regarding the clients IB appeal back in 12/03/2008.

Client has a huge overpayment which she is being asked to pay back.  Decision maker states that the IB appeal had been disallowed on 06/08/2008, therefore client had no entitlement to IB as set out in reg 4za and schedule 1b of the income support regs 1987.

Two questions;

Client ‘appealed’ therefore, if her appeal was disallowed should it not have been referred to an independent appeals tribunal? 

Secondly, is this a clerical error, therefore not recoverable?

If your client has no recollection of attending an appeal then it may be that it was held as a ‘paper’ hearing. If this was what happened then both the client and the DWP should have had copies of the decision notice and I would have thought it was reasonable for the DWP to act on it. If a decision notice was sent to the DWP and they did not act on it then I cannot see how the overpayment could be recoverable.

If there was never a hearing of any sort and the DWP just reconsidered but refused to change the decision then they clearly knew that the IB had stopped. However as it is an IS overpayment they may suggest that it was the claimants responsibility to report an change in IB entitlement to IS and cite the Hinchy case in support.

If IS and IB are in the same office base then you may get some help from CIS/1887/02- this (despite the date) is a post -Hinchy decision that states that the only duty on claimant is to disclose a change to the office dealing with his or her claim and there is no duty to identify any particular person in that office. I think it could be argued that where IB and IS are in the same office (eg have the same address and geographical location) then they should know about each other’s decisions in a way that would not apply to (for example) DLA. This may make the overpayment not recoverable .

Happened to one of my clients a while back- lost PCA appeal (paper hearing- client had no recollection of any of it) but IS carried on paying her for some years before realising IB credits claim had long since been cancelled. We appealed against the resulting overpayment decision and it was revised in her favour.

Excellent!!  Thank you both for your feedback.

Clerical error is neither here nor there.  The issue on recoverability is simply whether your client has failed to disclose a material fact or misrepresented a material fact which caused the overpayment.  If the appeal was never heard or your client did not know the outcome (assuming there was one) then your client cannot fail to disclose something which s/he did not know (or never happened)