In Feb 03 the department decided my client had been overpaid CA amounting to over £2000 because she had failed to notify the CA unit of her Category B RP award 12 months or so earlier.

She appealed the decision citing that although she had not notified the CA unit of the RP award, she had referred to her CA award on her RP claim form and therefore there had been no failure to disclose.

A tribunal which sat in June 03 accepted that this argument might be sufficient for Hinchy purposes (as they applied at the time), but because my client had no evidence that she had declared her CA award on her RP application, the hearing was adjourned with a direction that the SoS provide a copy of the RP claim form. The chairman was not aware that the SoS had appealed (or was about to appeal) the Hinchy decision in the House of Lords, and no reference was made to this in the adjournment notice.

The department provided a copy of the RP claim form (which confirmed that my client's CA award had been declared), but included with it a request for the re-hearing to be held over until the House of Lords' ruling in the Hinchy case. After a further delay waiting for the outcome of the Court of Appeal decision on CIS/4348/2003 (which has little if any bearing on this appeal) the re-hearing has now been re-listed for October.

Do the provisions of the House of Lords ruling on Hinchy apply to this case even though the ruling had not been made (and the SoS's appeal might not even have been lodged) when the decision was made in Feb 03 or when the original tribunal sat in June 03?

My client feels that because the unappealed Hinchy decision was the prevailing caselaw at the time of the original appeal, that caselaw should continue to be applied at the re-hearing. She thinks that if the missing evidence of her RP claim form had been available on the day of her tribunal in June 2003, she would have won her appeal.

peter, what's bothering me about this case is that i don't think it should be a recoverable overpayment at all. imo it should be attributed to official error. at the time of the RP award, the DM was aware that an overlapping benefit was in payment, and therefore an overlapping benefit decision was _required_ at the RP award stage- as in, not an optional extra. in practice, the CA D-M would have been the one to make the decision (CA not payable because of overlapping benefit provisions) but it would have entailed liaison on the part of the RP d-m with the other benefit area. she should not have awarded full rate RP with an overlapping benefit in payment, and it is the failure to make an ov/ben decision which has caused the o/p.

it is being attributed to claimant's failure to disclose - but what are the review grounds? not entitled to CA because...???

overlapping benefit provisions affect payability, not entitlement. underlying entitlement continues with overlapping benefits. can your client reasonably be expected to report the failure of the DWP to make an overlapping benefits decision? i wouldn't have thought so.

this doesn't exactly answer your questin, but i hope it helps...

jj

jj - Thank you for your reply. I think you're right in that however impractical it might be for all information to be dispersed freely throughout all sections of the department, failsafe mechanisms should be in place to prevent simultaneous payment of benefits that always overlap without there being any onus on the claimant to alert DMs.

The question of whether the HoL ruling applies to payability as well as to entitlement is too profound for me , but in his submission for this appeal the DM has (of course)included a copy of the page from a CA order book which says that the claimant must notify the CA office if they are awarded RP. So I think I'm still up against the 'simple instruction of the order book' obstacle.

Something else that daunts me is that in their comment on the HoL ruling CPAG imply that there will still have been a failure to disclose even if the department were already aware of the fact that was not diclosed (Shawn referred to this in his comments in the 'Hinchy - the end of the line?' thread). Are we to interpret this to mean that if there has been, as in this case, both an official error and a failure to disclose, an overpayment is still recoverable?

I don't think I have an argument that the RP award should have been amended to take account of the CA already in payment because where contributory and non-contributory benefits overlap the contributory benefit is always paid in full.

Thanks

To ground recovery the overpayment must be "in consequence of the misrepresentation or failure to disclose". Thus although there is no defence if the internal admin arrangements between departments break down (HoL - Hinchy) if it can be shown that the relevant office did in fact have knowledge of the material fact in question then the overpayment may not be in consequence of the failure to disclose. That question was left unanswered by the HoL in Hinchy.

i agree the case law now looks very daunting. i personally think that this is no excuse for the Secretary of State to behave like a tyrant - people will start to notice. when i was a decision-maker, if an overlapping benefit decision should have been given, and wasn't given, and an overpayment resulted, it was classified an official error, no question. responsibility was accepted by the Secretary of State. times have changed for the weaselier.

but its worth remembering that overlapping benefit provisions are not the same as duplication of payments provisions. the convention that the failure of PODOP procedures does not absolve the claimant of responsibilities to report changes, is one which has assisted the SoS for years. i'm not convinced, despite the case law, that it can be extended to the SoS's failure to apply overlapping benefit provisions. Section 73(1) of the Admin Act 1992 states that Regulations may provide for ADJUSTING benefit as defined in sec 122 of the Contributions and Benefits Act, and 73(2) states that subsection (1)(a) above APPLIES to any pension, allowance etc payable out of public funds...

you might want to note that in para 2.3 of the overpayment recovery manual it states -
2.3 There are several causes for what is classed as a recoverable overpayment, dependant upon the circumstances and the appropriate legislation:

a) Mistake by the Customer, whether innocent or deliberate.
b) Fraud, where it is admitted.
c) Interim Payment, pending a full award.
d) Prevention of Duplication of Payment (PoDoP) Failure.
e) Recoupment Failure.

No mention of Ov/ben failure.


anyway... going back to section 71(1) - and i grant that its wording (and that of reg 32 of Claims and Payments )doesn't _appear_ to distinguish between entitlement and payability (but consider issues relating to material facts and causation arising in case law).

section 71 (5) however, provides that the overpayment shall not be recoverable unless the determination under which it was paid has been reversed or varied on appeal or revised under section 9 or superseded under sec 10 of the SS Act 1998.

this does seem to bring entitlement back into the equation to a great extent.

overlapping benefit decisions are adjustments. they aren't revisions or supersessions, as far as i know. the award of CA is undisturbed by the application of an Ov.Ben decision and underlying entitlement continues, just the payment is adjusted - i take your point about the precedence of pension over CA - but i don't think it alters the position. An overlapping benefit decision was required, and since it needed action by a different benefit D-M, positive action was required of the RP D-M which required more than sending a communication across the agency, which is subject to communication breakdowns. she could have deferred making the RP award until confirmation had been returned to her that the CA had been adjusted.

i don't know if these arguments would succeed - i haven't tried them out. but i think there are valid arguments in this case. as you can see, they go all around the houses, suggesting to me that they shouldn't have to get this complicated, and that it is a simple and straightforward case of administrative error on this case, which shouldn't even be where it is at present.

have a nice weekend...

jj

Apparently if you can show there is a interface of some sort between the offices then there is an arguement around Hinchy and it is an official error. Just too open up a new debate is not the HoL arguement in Hinchey defucted under the new CMS processing.i.e. the initial call could be answered anywhere in Britain, processing is not done locally, and any phone call too report a CoC may be directed anywhere in the country again.
So the DMA reg which states a CoC must be too the office dealing with claim is surely now obsolete. Or does it re enforce the HoL statement 'we must not try and second guess what systems the SoS have in place......', Clearly under CMS the DWP employees and the SoS themselves can nolonger second guess how the system work.

Come on 560 hits someone must have an opinion

Alright Northwiltshire, I'll have a go. I can never resist a challenge! Lol. Its an interesting point. However, on first thought I would think that the not second guessing the admin systems of the DWP would be hard to get round.

Disclosure would thus be effective (by phone) if you phoned the telephone number of the relevant office as outlined on the decision notice. If that office chooses to outsource its admin work to another office then this is not the claimant's fault. After all it is not up to claimants to second guess etc, etc.

Just an initial thought.

Regards
Paul

Thanks for that I will ponder further though with current workload likely to be New Year after the many bottles will have recharged my thought processes