I would be grateful for some advice on the following: I have been asked to represent a client at an appeal against an Income Support overpayment.

The client appealed an overpayment decision in May 06 and an internal review was completed. The Reviewing Officer found a further overpayment and this has now been added to the previous overpayment and the appeal has been sent to the Appeal Service covering both overpayments. As far as I can see from the papers I have been given, the first time my client knew about the second overpayment was when she received the DWP submission to the appeal.

Should she have been informed before she received the submission that there was a futher overpayment and given the opportunity to comment on this prior to appeal?

There are two quite seperate matters here. Overpayment No 1 appears to have gone through the right procedure - client informed of it, disagrees, reconsideration rejected, ends up at appeal tribunal.

Overpayment No 2 should have gone through exactly the same - overpayment decision notified to client, with details of when where and how, client disagrees, asks for reconsideration and possibly ends up at appeal.

O/P No 2 cannot just be "tacked on" to the appeal, as it has never been appealed in it's own right, plus your client has never been given the opportunity to avail herself of the appeals procedure.

Is it me, or does there appear to be a new decision making culture growing out of the new all singing all dancing BDC's?

Following an appeal, if the review is less favourable to the claimant then the appeal continues against the new decision. So it is possible for the situation to arise as described where the DM undertaking the review finds the decision incorrect concerning the amount or period of the overpayment which increases the amount owed.

If the DM finds new facts or other problems which gives grounds to create a brand new revision of entitlement, e.g. information in the appeal suggests an overpayment for a completely different period, then Mike's suggestion is right - there should be a brand new decision distinct from the first.

Even if the DM, upon review had found that the increased O/P was part of the original one, then the client should have been informed of this in writing, and supplied with the evidence relied upon.

For them to only find out about it when they receive the appeal papers is clearly not acceptable. It also raises another point: the appeal is obviously against an alleged O/P for a set period in time. If the period of time that the O/P occurred in has been increased by the DM then is that not a new decision against which the client had no opportunity to appeal?

If of course the revised O/P figure is is a larger amount but for the same set period then that wouldn't apply. Either way, because the client only found out by reading the appeal papers then clearly the correct procedure has not been followed.

Hi Mike,

Perhaps in terms of being morally right and helping the client, I would agree with you - but then since when are the DWP interested in morals?

In terms of the decisions and appeal regs, I can't agree. If the original decision is revised following an appeal, then the appeal MUST continue, but as if it was made against the new decision, for example:

Claim revised on grounds of undeclared capital and IS overpaid from 1/12/06. Decision sent 10/01/07. Client appeals saying it wasn't undeclared - he told the DWP that he had the money on the day he received it, 1/10/06. DM then revises and a new decision issued on 30/01/07 that client overpaid from 1/10/06. The appeal continues, but against the decision of 30/01/07.

The claimant wouldn't know about this until receiving the appeal papers because the decision is less advantageous and so the DWP must continue with the appeal as if the second revision had never happened. If it were more advantageous the appeal would lapse and the client would receive the new decision and would have to appeal against it afresh.

I suppose its a shock to find out in the appeal bundle that an overpayment has substantially increased, but at least there is some safeguard that ensures the new, disadvantageous, decision will get looked at by the appeal tribunal (subject to the TAS1, etc...). It also means that possible confusion with appealing two seperate decisions is reduced.

It wouldn't hurt thought to forewarn someone that the decision has been changed and the details will be given in the appeal documents.

Tony

Was there a new award decision after the first overpayment period had expired which fell within the second overpayment period? If so then the first overpayment decision should have been revised or superseded and the new award decision also superseded and, as Mike and Tony have said, a new overpayment decision issued to the claimant with fresh appeal papers.

The appeal bundle then should cover the whole overpayment period showing that all award decisions had been correctly revised or superseded.

If not then the first overpayment decision should still have been revised or superseded and a new overpayment decision issued to the claimant.

The only other alternative (which does not make either judicial or administrative sense) would be to issue a separate overpayment decision for the second period with a separate right of appeal, two sets of appeal papers and two separate hearings.

As said above the DWP cannot just revise or supersede an outcome decision without notifying it to the claimant because until notified to the claimant in proper form then the decision is of no effect.

If the case goes to tribunal as it is the claimant should submit to the tribunal that it has no jurisdiction over the second overpayment because the decision to recover has no legal force until notified to the claimant.

In Regina v Secretary of State for the Home Department and another (Respondents) ex parte Anufrijeva (FC) (Appellant)

Lord Steyn stated at paragraph 27: -

"The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey <1983> 1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech, <1994> QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms <2000> 2 AC 115".

And at paragraph 28: -

"This view (in paragraph 26 above and expanded by paragraph 27 of the judgement - my insert) is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole in the corner decisions or knocks on doors in the early hours. That is not our system. I accept, of course, that there must be exceptions to this approach, notably in the criminal field, e.g. arrests and search warrants, where notification is not possible. But it is difficult to visualise a rational argument which could even arguably justify putting the present case in the exceptional category. If this analysis is right, it also engages the principle of construction explained by Lord Hoffmann in Simms".

Lord Steyn stated at paragraph 27: -

That should have said "paragraph 26".

The Anufrijeva point carries more weight because under Reg 30(4) of the Decisions & Appeals Regs:

"The appellant shall have a period of one month from the date of notification of the decision as replaced or revised to make further representations on the appeal."

Given that the decision has never been formally notified (which following Anufrijeva means that it is not valid in my opinion) then the appellant has been denied their statutory right to make further representations.

David

I think that's what young Tony and I said, but not in quite the same concise and elequent manner.................

Thankyou for all your postings. In response to some of the questions about the case. The client was issued with an overpayment decision for the period 09.10.02 - 26.11.02 as DWP state that she did not not inform them that her daughers DLA (under 16years) had been stopped so they continued to pay premiums as part of income support when not entitled. The client appealed this decision in May 06.

The reviewing office looking at the appeal contacted the DBU and was informed that client's own DLA had been reduced to LRC in July 02 but she had continued to receive SDP as part of income support when not entitled. So the reviewing office reconsidered the original decision and issued a further overpayment of Income Support dating back to July 02. The client it would appear was not sent a new decision about this so the first she heard was when she received the DWP submission. There is no decision notice in the pack for the further overpayment only a referral to the Decision maker for a revision of decision basesd on the new information.

The client had informed the DWP of both changes of cirs in November 02 and her IS was reduced from this point although no overpayment was issued until December 05. The client has severe mental health problems and states she did not deal with her and her daughers benefits at all, rather her own mother with dementia did!

To my way of thinking therefore the SDP premium is a completely different issue, and she was denied her appeal rights. There are two decisions (or should be), that are appealable - the entitlement to SDP decision which appears to be reasonable, and the decision as to whether it should be recovered, which is definately arguable.

Because of the mess that the appeal paper may well be in, and for the sake of clarity, you may well find that the Chair will adjourn, hopefully with few well chosen words directed toward JCP....