Hi
I am preparing to go to tribunal on behalf of my client but need some help as first time ! A brief outline of the case :
Client was in receipt of long-term Incapacity Benefit plus DLA (care) middle rate -therefore entitled to the severe disability premium in his assessment of HB. He was in receipt of full HB /CTB.
He then notified HB in Feb 08 that his DLA award had been reduced to low rate care from 1.5.07 and as a result his award was reduced with a subsequent overpayment.
He stated that his DLA award was for a fixed period and he had to renew it prior to May 2007. Following this review his claim was then stopped all together. He had subsequent reviews /appeal and finally succeeded at tribunal in getting the low rate awarded which was backdated to May 2007. This was heard on the 9.1.08 and he was notified by the DWP on the 7.2.08 that he had been successfull in his appeal for DLA.
At the same time he received an 'entitlement check form' form the LA which he completed and mentioned that his DLA had been reduced.

My argument is that he did not inform HB any earlier regarding his DLA as he was still having ongoing appeals. He did inform them once his case had been finally settled.
He was not aware that a change in his DLA rate would affect his HB entitlement -he was not aware that he should have been getting an IS top-up all the time he was receiving the higher rate of care.
The letters from the LA do not provide any breakdown of how the claim is caculated -except income total and applicable amount.

Is there a solid commisioners decision in this area -i.e. the overpayment should be deemed not recoverable from the claimant ? He suffers from depression.

Thanks
Alan

There is not a solid decison as far as I am aware because you need to show that there was a mistake amounting to an official error.

You might try an argument relying on CIS/222/1991 where it was held that where there is a clear indication that further enquiries are needed and those enquiries are not made, the failure by the authority could amount to an official error.

Check the LA's notices to see what instructions are giveen regardign disclosure of changes in circumstances because unclear instructions could amount to a modification of the duty to disclose and that could lead to the subsequent overpayments being caused by the Councils official error (Hooper v SOS, CIB/2126/2002,CA/2298/2005 )

The letters form the LA should include a stament of how the applicable amount is calculated so they are defective by the way.

Expect the Council to counter your arguments by relying on what is now R(H)2/04 where the Council had not considered the fact that a claimants working families tax credit was due for renewal. The Commisioner held that as it was not known if the WTFC would be increased, decreased or stay the same, there was no error by the Council.