My client received CA in 1988. She states that she disclosed this fact to HB at the time but was advised that it was not taken into account when calculating her HB entitlement. My client therefore did not disclose the amount on any of her subsequent review/application forms. It was not discovered until 2005. HB only have papers going back to 1993 so I cannot prove that she did disclose it in 1988. I'm really struggling to put a case together.

Has anyone had any similar cases? Are there any tactics I can use?

Thanks for your help,

Kerry Brown

I think you may struggle to be honest. An overpayment can only be deemed 'official error' if the claimant did not materially contribute to the authorities mistake or ommission.

Even if it is accepted she was initially told it was disregarded as income (which is not beyond the realms of possibility), if the claimant did not declare the Carers Allowance on subsequent claim forms, I imagine the authority will argue she subsequently contributed to their error in not including it as income.

It was held in Saker v SOS for Social Security (1988) that in respect of the question of someone materially contributing to the overpayment, it must be shown that for the the relevant person to act differently might have prevented the overpayment

She may argue that she didn't include it because she thought it was disregarded as income, but if a claim form states 'Do you receive carers' allowance?', even if she thought it was disregarded, surely she would still answer in the affirmative? The fact that the claim form actually requested this information would suggest it may have some bearing on her benefit entitlement.

(However, If the application form doesn't actually ask about carers allowance specifically, but just states 'list your income', she may have a stronger case).

In CH2794/2004 a claimant initially declared a private pension and then subsequently failed to declare it on subsequent claim forms. The authority therefore ceased to include it as income. She argued that the resulting overpayment was official error as the authority should have looked at her previous claim forms. The Commissioner stated;

'I begin by assuming that the local authority’s omission to compare claim forms was a mistake for the purposes of regulation 99(3). Even on this assumption, the claimant’s omission of the pension from each of her claim forms was at least a contribution to that mistake'.

I would however ensure that the authority are only seeking to recover any overpaid benefit from the date they first have records of the claimant not declaring the ICA. I would also make sure they have taken into account the carer's premium in assessing the overpayment. If they have calculated the o/p manually (which is a possibility if they are going back almost 13 years), they may have missed this.

HB can not prove she did not declare the Carers allowance in 1988 as they have no paperwork prior to 1993. She should appeal the overpayment on that basis and the fact that she did disclose the CA.

I presume income support was not claimed?

Has HB offset overpayment against Carers Premium from 88?

Hi,

Thanks for your comments. Unfortunately she did not have entitlement to Income Support and they have already offset the carers premium !

I would not be quite as pessimistic as stalbansbens.

This is an old problem that I still come across every few weeks or so. It's easy for benefit assessors (and welfare rights workers for that matter) to underestimate how easy it is to mix up (DLA) "CARE" component with "CARERS" alowance. It is common for claimant's who go into LA offices for help with submitting forms to come away with the impression that all disability benefits are "NOT COUNTED". I have come accross several examples where the HB enquiry office has clearly caused this misunderstanding (which is not surprising considering the lack of technical training given to many enquiry office workers).

The problem you have is proof. But on the other hand, as already ponted out, so does the authority. I have won more than one appeal on this issue when it came down to the claimant convincing a tribunal chair that they genuinely believed that they did not need to disclose (unless specifically asked) the CA income.

What does your client have to lose by appealing?

Actually, I probably would be as pessimistic as St Albans.

The LA is not under any duty or obligation to refer back to previous claims (including renewals in the days of benefit periods). This was found in CH/4838/2002 as well as the CD relied on by St Albans.

The difficulty is that the clmt will have to show that, for every single claim, she informed the LA. If the specific question was asked on the relevant claims, it will be very difficult for the clmt to succeed in claiming that she did in fact disclose the income in question.

The only other argument for the clmt is to suggest the LA hasn't made its case in respect of the period(s) for which the claim forms are no longer available. For the rest, sure, you can rely on technical arguments about procedures and quality of notifs etc, but the LA can bring it back to square one by simply renotifying.

Regards

Forgot.... (Derek S)...

I take the point that you have won Tribunals on the basis that the Chair has accepted the clmt truly didn't realise whe did not need to disclose. I would politely suggest those decisions are wrong in law. If there is no official error in HB/CTB, any overpayment is recoverable.

Regards

I have won more than one appeal on this issue when it came down to the claimant convincing a tribunal chair that they genuinely believed that they did not need to disclose (unless specifically asked) the CA income.

I think the difference in this case is that the claimant would have been specifically asked whether she received Carer's Allowance on the various 'review' forms she would have completed over the years.

Two points here.

It is still common for claimants to be given the impression that "disability benefits do not count" - which as we all know is a gross simplification and quite misleading. What is not common is having proof that an LA officer caused this misunderstanding. In the cases I won the evidence was strong enough to convince the tribunal that there HAD been an official error - so the decisions were correct in law.

Secondly stalbansbens is quite right, if the Carers allowance questions were specifically asked on forms then there is no chance with any appeal. However quite a few LA's did not ask specifically - they just asked for "other benefits". I think many have now changed but only quite recently.