Apologies for length of post.

I have a client who is a pensioner (no Pension Credit) and who claimed CTB (owns the home) 3 years ago. He received partial CTB until this year when they hit him with a £1800 overpayment.

CTB say that he failed to include his wife on the claim.

Client says that he included her name. He did not include her financial details because he does not know what her income and savings are. They live in the same house, but separately (separate sleeping arrangements, separate financial arrangements etc.)

Client admitted she was his partner when completing the form. He states that he made it clear that he could not give her financial details while completing the form, but when asked how this was made clear is not actually sure he said anything about it. The form is structured in such a way that it asks questions like "does either partner have a bank account ?" and then expects you to list them...

As far as this went it seemed like a weak case. The council is wrong in saying he failed to disclose a partner but there certainly appears to be an overpayment, and it seemed likely to be recoverable. Client has admitted he has a partner so this would be hard to challenge, he has almost certainly failed to disclose her income, and we cannot ask for offsetting because she is still not willing to provide her income. I decided we would write and ask for a copy of the form and decide whether there are appeal grounds when we see this.

(Complicated by the fact that if even if his wife is NOT his partner, she is a joint owner of the house and should have been counted either as a joint tax payer or as a non-dependant, so he would still have been overpaid)

Then I looked at the form. The form asks a claimant to include a partner, and gives the following definition :
"By partner, we mean someone of the opposite sex you are married to or live with as if you are married" (Newer versions apparently include this plus same sex partners/civil partnerships - our forms are still old stock).

However the actual definition of a married partner is of course :
"married and living in the same household".

(I do have some sympathy for the council, in that they have attempted to explain things in a simpler fashion - but this is just wrong)

Now my client may be somewhat confused about the claim, (he is 88 and has never made a previous benefit claim)but according to their definition he HAD to include his wife.

I am hoping to argue that all following errors stemmed from this - he had to put her name on the form, but because they have separate households he could provide her financial details. There was also no way he could correctly include her as a non-dependant because the form only goes on to ask for "other people" who live there...Basically anyone in his, unusual, position could not submit a correct claim on the form as provided.

I am therefore trying to argue that the whole overpayment stems from an official error - this being the incorrect definition on the form. (And crossing my fingers the form hasn't changed that much in 3 years, the council seem to think it hasn't)

Does anyone have any experience of similar cases ?
Does anyone think this has any chance of success, or am I over reaching ?
Is it common to have such incorrect advice given directly on forms ?

Victoria J.

I think initially you need to ascertain whether he did or did not mention her on the form (as this seems to be in dispute), and if he did, how he referred to her.

If he did put her down as a partner and did mention in some way that he could not give her financial details for the reasons you have stated, then it certainly is arguable that there was official error in the failure to follow up on this, and I think that it would be hard to argue that he ought to have realised. But if that is not in writing and he cannot be certain himself, proving it may be a problem.

I may be missing something obvious, but I have to admit that I am struggling to see the significance of that bit of wording on the form, even if it was not technically correct.

The further option of course is argue that the Council should use its discretion not to recover, given his age and evident confusion.

Victoria
Is that definition of partner under a heading, or part of a section headed, "people who live with you" or something similar?

The error lies in "By partner, we mean someone of the opposite sex you are married to or ......"

That is not the legal definiton. The relevant definiton in the present case is the definiton of "married couple" in the SSCBA.

The "married couple" definition is that of a man and awoman who are married to each other and are MEMBERS OF THE SAME HOUSEHOLD (my emphasis)

This needs to be taken one step at a time:

They are not a couple given the circumstances, whether they are married or not. (S137 SSCBA)

She is not a non dependaant if they are joint owners. ( Reg 3(2)(d) 1992 CTB Regs)

His claim should therefore have been assessed on the basis of 50% of the tax and without taking her income into account.(Reg 51 (3) 1992 CTB Regs.)

The question that then arises is whether or not your client innocently or otherwise misrepresented a material fact when he completed the form. It may well be that he did not

If the Council should have been put on notice that further investigation was needed because the discrepancies in the form were such that an assessor properly instructed as to the law ought not to have assessed the claim on the basis of the evidence to hand, then the resulting overpayments could well be official error. See CIS/222/1991

Victoria

If she is a co-owner then she cannot be a non-dependant. If they are estranged and it can be demonstrated that they are maintaining sperate households (on the facts - and you obviously are more aware of them than I) then he will be eligible for 50% of the councill tax in council tax benefit. Although he will still be jointly and severally liable, along with his wife, for the whole of the council tax.

Can you build a case for them maintaining separate households because if you can then he is assessed as a single claimant and her income is irrelevant.

Regards
Paul

I believe that it may be possible to build a case that they have spearate households - I think the main obstacle was that he had already declared her as a partner on the form. However he was still overpaid because she was not treated as a joint tax payer...

He definitely declared her, including her name etc. He definitely did not declare her income and savings (she wouldn't give any details). It is unclear whether he explained that he wasn't giving details - it seems likely he just left them off the form.

The explanation on the form is under a haeding "Do you have a partner who normally lives with you?" which I guess does suggest a household. I still think that by having a description that suggests being married or live with as if you are married would mean that anyone married should be included. The client understood it as meaning this, he did not think his circumstances mattered because they had asked if he was married, and he is.

Victoria J.

The rules on mirespresentation mean that an innocent misrepresentation may make the overpayment recoverable, but conversely there can be no failure to disclose facts that one does not know.

CIS/222/1991 is a good authority to argue that innocent misrepresentation ought only to be taken so far, and I have a case before a Commissioner at the moment where I am arguing that there was no failure to disclose where an officer had indicated that the change need not be disclosed. I wrote in my submission:

" Mr Deputy Commissioner Mark allowed an appeal in CIB/2126/2002 from an incapacity benefit claimant who did not disclose work that was in a non exempt category because advice given from the DWP’s own Benefits Enquiry Line contradicted advice given in the order book. Similarly, Mr Commissioner Rowland allowed an appeal in CA/2298/2005 from someone who had not disclosed to the DLA unit that the claimants care home fees had started being paid by the local authority. He wrote at para 13:

“13. However, what she argues is that the ordinary duty to disclose was modified in this case by the Customer Liaison Manager This submission needs further analysis. A representation by an officer that there is no need to make further disclosure may have an impact on the duty to disclose imposed by regulation 32(1), (1A) and (1B) in a number of ways. Where regulation 32(1) or (1A) is concerned, the claimant might understand the representation as a modification of written instructions to furnish information because, perhaps, he or she might understand that the information would not be relevant to entitlement to benefit in the particular circumstances of the claimant’s case"

I think you can use CIS/222/1991, along with the others that I cited in my submission on the case involving alleged failure to disclose to argue that your client did not misrepresent the fact that he had no partner because the LA misled him as to the definition of "partner" The error in this case is misleeding advice from the LA and that was the cuase of the alleged overpayments

It is a difficult one.

I am not certain of the strength of the argument that by using the words “normally lives with you” rather than “members of the same household” the LA is effecting an official error. Are you suggesting that if the wording had been “members of the same household” your client would have completed the form differently?

The wording “do you have a partner who normally lives with you” is used on a number of DWP forms with no further guidance given. (Not in itself a guarantee of quality I grant you.) But nobody wants the claim forms to be made any more tortuous than they already are by forcing LAs to include the regulation definitions of all the terms just to avoid the possibility of claimants being able to say they were mislead by the customer friendly version.

However, it is very easy for me to understand how your client could have genuinely completed the form in the way he did.

I think a lot stands on whether your client did make it clear that he could not provide her financial details. If he did I would agree with Stainsby that this should have prompted the decision maker to ask further questions to determine the correct situation. Under these circumstances the overpayment would be LA error.

Stainsby
I can’t agree with that point as you put it.

The LA is just explaining how the term “partner” is being used in the phrase;
"Do you have a partner who normally lives with you?"

In other words, the LAs question in the context of this claim as explained by their notes is actually -

Do you have someone of the opposite sex you are married to who normally lives with you?

Any argument around “Official Error” must centre around whether this question is materially different from the question;

Do you have someone of the opposite sex you are married to who is in the same household?

It seems to me that the LA defined a "partner" simply as a person you are married to. (As I said earlier it is not)

The phrase "normally lives with you" is to me synonymous with "normally resides with", which is part of the definition of a non dependant.

A non dependant cannot (again by definition) be a part of a persons household. Unfortunately "household" is not defined in any of the legislation and so it has to be given its normal everyday meaning.

The meaning of "householld has been considered in a number of Commissioners decisions, most notably CIS/671/1992, also in CSB/4631986 R(SB)4/83 and R1-91(IS)

The notion of a household, at the risk of oversimplifying the issue, centres around the domestic arrangements, so it is entirely feasible that people can live together under the same roof but maintain seperate households.

The Council seem not to have taken this possibility on board.

It is an interesting argument with, perhaps, far reaching consequences.

The definition used on the form in question appears to have been directly copied from the DWP form HCTB1 which is completed by the majority of people claiming HB and CTB in the Country. It is also copied by most LAs for their own claim forms.

If the definition is wrong then it will be wrong for more than 75% of all claims made for HB/CTB in the last 5 years.

I never got back to this because I was too busy, sorry.

I think that put together the heading and description are actually quite a good description. The problem would be that the natural way of reading it would be to go by the description not the heading I think. The heading would be their name for the information, the description explains what should be included their.

As I said at the begin perhaps I am over analysing.

And even if it is wrong then it wouldn't effect many people. The client's circumstances are unusual.

However I wrote my letter and made my arguement that this was official error, and the council's response has been to re-award the benefit. It is an odd decision as I actually admitted in my letter that he isn't entitled (either her income would make him ineligible, or treating him as having joint liability would) but it does write off £1900 worth of debt.

I suspect the council either just didn't want to argue with me, and didn't want to have someone trying to critise their forms in detail OR they checked his form and it was so obviously inconsistent they are embarrassed they didn't carry out further checks and don't think they can justify that.

I am not 100% happy - but I am calling that a result.

Victoria J