In Feb I posted the above enquiry as the tribunal had decided to adjourn for the criminal trial re: DLA overpayment & Fraud. Having followed the helpful advice received, the tribunal was then scheduled to be heard before the trial. Heard today, the tribunal decided that the client was not entitled to DLA from 29.01.06 when the observations were made by fraud officers. However, they also held that she was not liable to repay the overpayment of c.£144.00 and that would appear to pull the rug on the criminal proceedings, (although Presenting Officer would not confirm that this would be the case).

However I have a niggle! The client was initially awarded the low rate of care component on the basis of the fact that she could not bend to use the oven. Video evidence shows her bending over into the boot of a car to put in shopping bags. However, in her claim form in 2003 she merely said that if anything had to be put in or taken out of the oven then her daughter would need to do this. She still maintins that she cannot do this, notwithstanding the video evidence. In giving the decision, the chair had suggested that the client might not have been able to put food into the oven for the whole family; a joint of meat, for example. However, the test is for a meal for one. The Chair explained that because the client was not to understand the subtlety of this, she was not held to be under any duty to report any change. In many ways it was surprising that she was awarded the benefit in the first place. However, strictly speaking her cirumstances have not changed.The client explained that her oven is lower than the boot of the car and they were only light shopping bags etc. The tribunal, though, had in mind the meal for one test and it was always clear that they were never going to decide that she was eligible for DLA from Jan 06- but is this the issue, given that they heve in essence revised the decision and applied the correct test, if you like, and have done so from a later date, when grounds for supersession should apply.

Once again, sorry for along winded posting and I apologise if is appears a little confused! Any light on the matter would be greatly appreciated

Hmmm - I don't think that an inability to bend to use the oven should ever, in and of itself, allowed her to pass the cooking test - see CDLA/5686/1999. If this was the sole basis of her passing the cooking test then the award was made as a result of official error. Overpayment certainly not recoverable - but no ongoing entitlement either, regardless of whether her circumstances actually remain unchanged.

Readers may be interested to read CDLA/179/07 which looks in detail at the duty to disclose (a change in care needs) for DLA, grounds for supersession of an existing award (from a date earlier than the actual supersession decision) and, therefore, on recoverability of the resulting overpayment.

Peter, i could really do with seeing that decision asap, and it's not showing up yet on the Commissioner's site. Could you possibly fax a copy to me on 0121 327 7486?
many thanks.
jan