The local authority is seeking to recover an o/p of £3000 from my client on the grounds that it was reasonable for her to realise that she was being overpaid. In fact, my client visited the local authority on numerous occasions (visits logged) and queried the amount of her HB entitlement. She was assured by specific members of the Hb department that her entitlement was correct and that she could cash the cheques. Local authority now say official error in o/p but client should have realised.
My point is - she did realise, and made attempts to bring it to local auth attention but was told that amount was correct. What more could she have done?
Surely, it's not reasonable to have expected her to save some money "just in case" it wasn't correct, when she'd been told a number of times that it was?
Any thoughts gratefully received. Thank you.

i had case like the above for a claimant. I took it to TAS for her and won.

See the below discussion thread if the post works:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=2190&mesg_id=2190&page=3

Yes, and I still stick to what I said in the last message of that thread.

LA's tend to think that the fact that the claimant regularly questioned the accuracy of payments bolsters their case that the claimant ought reasonably to have known they were being overpaid. In fact, it totally undermines such a case. If the claimant is constantly reassured by the HB dept that the payments are correct, no way can they reasonably expected to 'know' otherwise. This is of course unless the office puts signs up at its enquiry points saying "Please treat any advice you receive here with extreme caution."

Quite true. LOL

Andy
I am not certain how information given to a claimant after the time receipt of the payment (I.E the LA saying, no its not an overpayment)could have any retrospective effect on the claimants realisation at "the time of receipt of the payment".

Still think that in the case described the LA should write it off though.

Thanks everyone.

The point is that when benefit is overpaid, there is often not one single overpayment, but a succession of overpayments. Thus the information a claimant has at the time of the fist (over)payment may be very different to the infomration she has at the time of the last payment made before the LA discovers its mistake.

In other words incorrect information given by the LA will colour what the person can reasoably expect to understand fully.

The fact that the person queried her entitlement may be some indication of what she understands, but if she could not reasonably be expected to be 100% sure that she was at least being overpaid to some extent then the overpayment will not be recoverable

The danger and distinction in this case is that your client did know that she was being overpaid. Therefore, the question of whether it was 'reasonable to expect her to realise' should not arise at all.

The alternative is that it may be fraudulent. Any adviser who ignores this fact in favour of using it to obtain the advantage risks disciplinary action. I would also question their fitness to practice.

I NEVER advise my clients to lie, but in cases like these, there will be a point when clients can reasonably be exepcted to think that they might be wrong in their own assesments of whether or not they have been overpaid.

Dont forgert that the legal test is not whether a person should realise that he or she might have been overpaid or even have very strong grounds for suspecting that they were overpaid. The test is that the person should realise (ie fully understand ) that they were overpaid.

The issues were addressed by Mr Commissioner Jacobs in CH/4065/2001. He accepts the claimants argument at para 7:

"7 . The claimant´s argument on her appeal was this. She had realised that the local authority might have made a mistake in the calculation of her award. She telephoned the local authority to report this. But the officer to whom she spoke was adamant that no mistake had been made. So, she was assured by an officer of the local authority that the award was correct. In those circumstances, she could not reasonably have been expected to realise that there was an overpayment"

He then wrote:

"What the tribunal had to decide

8. So, her case turned on a crucial issue of fact: did she make the telephone call as she alleged?"

The question of whether it was reasonable to expect your client to realise that she was being overpaid when she obtained the payment is the legal test and it arises each time the payments were made

Fair play stainsby!

SJ:
What if there is very good proof to show that the claimant had queried on several occasions yet the local authority never acted? How can that be attributed to fraud?

Isn't it logged when a claimant visits a local authority office (N/O) to query there claim?

Another thing, I think any decent honest advisor would touch a case with a barge pole if they suspected fraud!

The suspicion of fraud wouldn't make me drop a case. If my client says "I knew I had to report my increase in wages, but I didn't" then I would advise them that they didn't have a case and the o/p was recoverable. But if they said "I reported the increase in wages, but my benefit stayed the same" then I would take on the case even if I didn't believe them that they'd reported it. That's more applicable to DWP overpayments because of the bit about realising you've been overpaid, but the basic principle is the same.

I've had several cases where I didn't believe the client's story, but the tribunal did and allowed the appeal. I've seen cases where I thought the client's explanation as to why they didn't realise they were being overpaid was nonsense, but the tribunal accepted it.

I won't lie to tribunals in the sense of telling them something I know to be untrue, but I will put the client's case even if I suspect they are lying or mistaken. I see nothing wrong in saying to the tribunal " Mr Smith tells me that..." even if I personally think Mr Smith is lying. Provided I put the evidence to the tribunal honestly, it is for them to assess that evidence and come to a decision. If they see the evidence differently, then I was obviously wrong to doubt my client.

I don't see a problem with that. LA Presenting Officers might not fully agree with a decision, but if they see that the decision maker acted reasonably and was entitled to reach the decision they did, it would not stop them putting the LAs case.