I have a client who had loophole funding until the residential premium was withdrawn on 5.10.03. Council funding then started so AA should have been withdrawn after 4 weeks but it remained in payment to Feb 05 when the clients appointee phoned the Pension Service.
The appointee had received a visit fron a Pension Service visiting officer on 4.4.03 for the purpose of explaining that the residential premium would be withdrawn and that Council funding would be required.
The visiting officer told the client that all benefit changes would happen automatically so the appointee did not contact anybody in October 03.
I have an appeal in challenging the recoverability of the overpayment.
I am aware that commisioners decisions state that you must inform the paying office i.e. Blackpool, however feel that this should be treated differently as the Pension Service initiated the visit (to this and all loophole clients in our area), also the appointee was told she need take no action and also due to the ethos of the Pension Service being seen as a`one stop shop` for all pensioners benefits.
I am interested in any opinions or similar experiences which anyone could share please.

I think you could argue that the SoS must have known about the change all along, and so you can still rely on Hinchy v Secretary of State. The case has yet to be heard by the House of Lords and will remain good law unless their lordships overturn it.

Unfortunately, I don't think it is as straightforward as that. The Secretary of State did not know that funding would be taken over by the Local Authority. It is equally possible that funding would have been taken over from elsewhere leaving entitlement to AA in place.

Your client may be able to rely on the misadvice from the PS as a basis that disclosure was not required (although that too will be harder now). Locally, it is the policy of the Social Worker involved to notify the Local Office when a service user enters LA funded residential care. In that case, it will be possible to use Hinchy if someone else has notified the Secretary of State. Alternatively, it might be arguable that the Local Authority ought to have notified the DWP so you could ask for an increase in the personal expenses allowance to cover the cost of repaying the overpayment which might have arisen at least partly as a result of the LA not doing their job properly.

Hinchy arguments aside, I think there's a credible case that disclosure was not reasonably required becuase of what was said/not said at the visit. Good evidence about what was and was not said will be important and it's worth asking for a copy of the DWP's records relating to that visit (Tribunal can direct they are disclosed if DWP refuse and you can also apply under data protection disclosure rules).

Several commissioner's decisions on reasonableness are discussed on pp 66 -7 of Vol 3 of current edition of the Social Security Legislation (Rowland & white)and I also see that CIB/2925/2003 is summarised in latest CPAG WR Bulletin, This appears to be particularly relevant for cases where people have had information from the DWP.

Unfortunately a recent Tribunal of Commissioners decision, CIS/4348/2003, held that the 'classic test' of recovery of an overpayment being dependant on whether disclosure of a material fact was reasonably to be expected was wrong, and all consideration of reasonableness was irrelevant.

(see the rightsnet news story -

Overpayments and \'reasonable failure to disclose\': New Tribunal of Commissioners decision)

CPAG are looking to appeal the Tribunal of Commissioners decision to the Court of Appeal.

In the meantime, advisers representing clients disputing the recovery of an overpayment on the basis of ‘reasonable’
failure to disclose perhaps could consider asking that their case be 'put on hold' until the final outcome of the appeal is known.

My reading of this decision is that the reasonableness to disclose test still applies but not in cases where one is arguing reasonableness on the basis of the claimant's capacity.

It appears that the pension service visiting officer was assuming that funding would be coming from the council, and that is why I suggested a Hinchy argument

It was held in CIS222/1991 that if the decision maker has clear evidence indicating that further enquiries were necessary, and ifthose enquiries are not made, the resulting overpayments may be official errors.

Mon 22-Nov-04 01:08 PM by ken

I do feel that the implication of the recent Tribunal of Commissioners decision in CIS/4348/2003 ranges much wider than whether mental incapacity may be relevant to failure to disclose.

The Tribunal of Commissioners specifically hold that R(SB)21/82 - in which the Commissioner held that -

'I consider that a 'failure' to disclose necessarily imports the concept of some breach of obligation, moral or legal - i.e. the non-disclosure must have occurred in circumstances in which, at lowest, disclosure by the person in question was reasonably to be expected.'

- and all cases since which have cited it with approval to have been wrongly decided.

The test the Tribunal of Commissioners formulate is simply, if a claimant knows a fact which he fails to notify the Secretary of State of under the requirements of regulation 32 of the Claims and Payments Regulations 1987 then s/he will have failed to disclose, to which considerations of reasonableness are irrelevant.

What do other people think?

On a slightly different tack. I'm assuming the person was charged from October 2003 by the local authority under the Charging for Residential Accommodation provisions (CRAG). In which case their Personal Expenses Allowance is likely to have been the minimum amount - currently £18.10. If following their appeal the overpayment is recoverable from them, then they could request an increase in their PEA to make up the difference.

I think that the tribunal of Commissioners decision is saying that reasonableness of disclosure will never be relevant where the Secretary of State has specifically requested the information (as he frequently does in INF 1's). The duty to disclose is an absolute one and the claimants capacity to do so is not relevant under reg 32(1) C and P regs. However, it seems that reasonableness might be an issue in respect of the general duty under reg 32(2) although I don't think the Commissioners addressed that (I am prepared to be corrected on that).

In this particular case, the question must be whether the claimant should rely on the request for information in the INF 1 (or whatever the leaflet is called) or the apparent information given by the officer of the Pension Service that no further disclosure was in fact required.

It seems likely that the later statement will take priority so it might come down to whether the claimant received another leaflet after the visit.

The other outcome of the CD seems to be that the Commissioners were envisaging a greater use of discretion of the Secretary of State in whether to recover or not (as in Tax Credits Ha Ha) and "deserving" cases should be considered in this way. In that case, it would be reaonable for the Secretary of State not to recover given that he had at least contributed to the confusion that lead to the overpayment. (Whether he will so esercise his discretion is a different question of course).

If Ian is correct, then maybe we should be looking towards the JR remedy used by Mr Ash in R v South Hams DC ex p Ash (1999)32 HLR 405 QBD (available on the HBinfo site)

Mr Ash was a war pensioner and he received a backdated payment. South Hams DC did not disregard war pensions, and so the bakcpayment rsulted in an overpayment of HB which the LA sought to recover.

The judge ruled that the purpose for which war pensions are paid was a relvant factor which the LA must consider when exercising the discretion to recover or not, and stopped recovery.

I am not sure that that would help in this case as AA is paid for personal care. This was apparently already being paid for by the local Authority.