Hi all,

Thought i would get your view on this while i'm in the middle of revising.

I have a claimant (lone parent 2 children 1 of which has DLA) who in March 03 made a renewal claim, she provided all proofs to N/O. WTC used to be paid into bank accounts back then(02/03 awards). All proofs were VF'd (including bank statements) and sent to HB dept. The claimant prior to this only on partial HB/CTB(which was fine).

The claimant then received correct notification of partial HB which the claimant agreed was correct.

HB was then calculated and awarded full HB, the claimant then received the notification. I have prints outs of LA sys actioning a pending flag!

The claimant knew this award was wrong and queried it straight away with the N/O. The N/O advised that her the claim on HB sys was ok (which i have computer print outs of!). The claimant still insisting HB was wrong then went back to N/O and a LA officer calculated the HB to be considerably lower but failed (missing via TAS submission) to inform HB dept.

Another renewal was made in feb 04 and all proofs provided at N/O. The LA then created a VERY large HBOP and CTBOP as the WTC/CTC letter was for the 03/04 award. The basis of overpayment was, of course, increase in income.

The claimant appealed (all appeals at N/O copies of which, i have!) this on the grounds she informed LA of income details when she made the renewal claim. LA ignored this and recovery the HBOP from landlord forcing massive arrears. Claimant then appealed again, the LA said appeal was out of time. The claimant provided copies of original appeal and it was accepted. The LA said HBOP/CTBOP was correct and recoverable as failed to inform of WTC/CTC award.

Claimant then visited local Councillor who admitted LA was wrong in there decision.

To the point:- The LA acted incorrectly in actioning claim, the claimant did provide all proofs. The LA would have seen WTC paid into bank account knowing claimant would be in receipt of it. The claimant queried the incorrect award and was advised everything was fine.

What do you think? Bit of a long one i know sorry.

Brad.

If you want a quick answer i try not to get into some of the detail but make some basic points.

Your main ground of appeal seems to be to claim that reg 99 (2)applies. I.e. that the O/P was caused by official error and that your client could not reasonably have been expected to realise it was an overpayment - and therefore is unrecoverable.

If i read your account correctly, a statement giving correct TC counts as a notification in my book and by being told repeatedly that the award was correct shows reasonable cause to be unaware it was in fact an overpayment. If your evidence backs this up I would be fairly confident on your chances.

Irrespective of your appeal however your client would also seem to have a good cause for complaint to the local government ombudsman who would not adjudicate on the HB decision but would investigate into the maladminstration of the WAY your client has been treated. Since a coulcillor has already agreed with the case but the HB authority has not given a satisfactory response the complaint looks to be a certainty.

Thank you Derek.

Thats my angle, major maladministration! Luckly I have a letter from the Councillor to head of benefits expressing that an explicit error has/had occurred! Can't wait to see the PO's face, don't even know why its got this far.

Claimant is appealing to the Local Gov Ombudsman.

Appeals is at 2pm, when i'm back in the office i shall let you know how it went.

you wrote

"The claimant knew this award was wrong and queried it straight away with the N/O"

as your next line then states that client was assured calculation was correct, i think you'll be ok, but i would suggest you use different terminology. eg. client *suspected* award was wrong, rather than "knew" was wrong

after all youre trying to argue that its reasonable that the claimant would be unaware that benefit in payment was likely to be an overpayment.

Is it a serious suggestion to deliberately mislead an appeal Tribunal?

The post clearly stated the clmt KNEW the award was wrong - no "suspected" etc. Therefore, as far as HB regs go, the o/p is recoverable. However, if it is true that the LA subsequently advised the clmt all was well, then clearly that puts a significantly different perspective on it.

Just for the record, I'm well aware that come LAs are not averse to producing eveidence in such a way as to mislead Tribunals - that is equally unacceptable.

One other point - it is not necessarily official error for an LA to miss entries on bank statements (obviously this is only relevant where the income was not otherwise declared). There is more than one CD which confirms that a failure to declare income on a form overrides an entry on a bank statement, but this will depend on the overall facts of the case.

Regards

With ref to the above, if the client told the Council that they were reasonably sure the benefit was incorrect, but were then reassured that it was in fact correct, then who are they to further question the wisdom of those who should know? the client has done what they can to stop benefit being paid inadvertantly and therefore cannot (or should not) be penalised.

The whole purpose of asking for bank statements never was just to verify savings, but also for DM's to look for payments into and out of the accounts which may signify other accounts not declared or other income not declared: looking at bank statements isn't exactly a complicated or even difficult exercise - If they "miss" entries then to my mind that is down to them.

With 90% of benefits now being paid into bank accounts, and award letters being regularly lost in the mists of time, the ability of a DM to actually read bank statements accurately is now even more important - as we all know benefit payments are normally easily spotted given that the NI number is the reference used by most banks.

Hi Mike,

With specific regard to info on bank statements, the following CD was the basis of my observation (should really have quoted it first off):

CH/0069/2003

Another, CH/0603/2004, is also well worth a read.

Kind of related to this issue, there are one or two other CDs where Commissioners have found that LA's are under no obligation to check info provided on previous claims (e.g. CH/2794/2004 & CH/4838/2002).

Regards

"Is it a serious suggestion to deliberately mislead an appeal Tribunal?".................

Only wanted to add that I understand the Appeals Service are subscribers to this site, as no doubt are various other branches of our esteemed and (soon to be decimated) much loved Civil Service..............

just to clarify my meaning so that no one thinks i was suggesting that any one tries to hoodwink anyone else, particularly an appeal tribunal

the original post states that client "knew" the HB award was wrong. she then went to a N/O to query it and was told the assessment was correct, and she left happy with the explanation that it was ok.

if the client really "knew" the assessment was wrong she wouldnt have accepted the N/O reply that it was ok, but would have persisted in her belief that an error had been made, and pursued her enquiries until the error had been out right.

thus it seems to me the client didnt "know" the award was wrong but only suspected that it may be.

Except, that the original post also goes on to say that even after the LA gave assurances, the clmt still knew it was wrong....

you're right. given that id be inclined to argue the O/P may be recoverable as the claimant in all probablility knew that benefit paid was an overpayment. however id pursue the maladministration argument

i look forward to bradw letting us know how it went

Yes Kevin, but it needs considering with reg 99. Official error OP IS unrecoverable if the claimant can show that they could not reasonably be expected to have known that an overpayment was being paid.

If a claimant tells an LA they think it is wrong and an LA repestedly tells them its not then the claimant is quite reasonable to accept the La's word for it and its really quite unreasonable to "expect" the claimant to know they are recieving an OP. In other words if the LA is so incompetant then they should not expect the claimant to pay for it.

Just got back in the office and it it goes like this:-

Decision of the Tribunal

The appeal is allowed.

There is no recoverable overpayment from the appellant for the period ###### i respect of HB and ##### in respect of CTB.
It is clear from the papers and evidence heard today that on receipt of the letter of ##### the appellant went into N/O on ###### al so providing another wage slip.

This is show by ###### of the bundle. However the notification of entitlement of ##### is incorrect and indeed the appellant was so concerned that she queried it on ##### at the N/O and was reassured that her entitlement was correct. It was only on renewal the following year that all this came to light.

It should be said that the LA's breakdown how entitlement is calculated could be more specific i.e. breakdown detail of income other than earnings so that if benefitsare paid itemising each one individually with the weekly amount, so that claimants can easily identify any errors in the calculation.

The appellant having been reassured by the N/O as to accuracy did not contribute to the overpayment which was caused by an official error.

There you have it!

Brad.

Very interesting decision - very useful to see it detailed.

There is one notable matter missing from the decision. In the decision, it is stated:

"the appellant was ........reassured that her entitlement was correct."

There doesn't seem to be anything in the decision addressing the related issue of whether or not the clmt could, nevertheless, reasonably have been expected to realise she was being overpaid. The decision only makes reference to the issue of contributing to the error (or not, as was found).

From an LA perspective, if the decision is also stated as containing reasons for it, there *may* be grounds to take it further (whether this would be sensible in the circumstances is another matter). Obviously, if the decision doesn't include the reasons, a subsequent SOR may well address the issue of "expected to realise".

Just some thoughts.

Regards

Personally I always think that too much is made in these cases of what the claimant actually knew. The test is what they could reasonably be expected to know, not what they actually knew - and the two are not necessarily the same! I think it is perfectly possible to construct an argument which says "client knew HB was wrong, they enquired about it several times and were told it was correct, but they still knew it was wrong. BUT after all those assurances they got from the LA, no way could they be reasonably be EXPECTED to know it was wrong (even if they did!)"

OK, I accept you'll either see the logic of this argument immediately or not at all, so don't ask me to expand upon it!

In any case, should an LA, accepting that it had wrongly assured an enquiring claimant that their incorrect benefit was in fact correct, actually be pursuing recovery even if they have decided it is recoverable? Notwithstanding the sheer brass neck involved, it is likely to cause hardship, given that the claimant will have adjusted their lifestyle to the rate of benefit being paid (which they have been ASSURED is correct).

That's what I think anyway.