a 10 year (argh!!!) retrospective removal of DLA entitlement - care and mobility , against which we have already appealed, has also of course led to a huge alleged overpayment.

Client has now been issued with two separate overpayment decision notices, one for the mobility component received today and one for care component received last week, for the same dates for the same DLA award, withdrawn for the same reasons, and appeal is on the same grounds.

procedurally and bureaucratically do there actually have to be three separate appeals, 3 separate appeal letters and GL24's - removal of overall entitlement, and each separate component overpayment?

we have asked for suspension of recovery pending appeal and if appeal fails will be asking for exercise of discretion vis a vis bankrupting recovery,

would welcome advice, many thanks

C

I can't understand the two separate OP decisions, since technically DLA is one benefit with two components - you think about right hands and left hands...they do of course raise rather different legal issues, I know.

Whatever, you want to ensure that when the appeals are passed on to the TS all three are listed for hearing concurrently. DLA OPs have to be heard by the usual 3-bod DLA tribunal, not chairman alone like other OPs.

Supersession of the original award (by saying it shouldn't have been paid at all) is a necessary precondition to the right to recover an overpayment so (almost) all OP cases are technically on two totally separate issues: (1) has there been an OP and (2) if so, is it recoverable. If issue 1 is disposed of by the Tribunal then issue (2) becoems irrelevant.

Most Tribunal will or should be all in favour of adjourning a recoverability hearing to be dealt with at the same time as the overpayment case, so you should do all you can to ensure that it is.

many thanks for replying. the cessation of the mobility and care components were very clearly notifed in one letter as one supercession decision so yes, i don't really understnad why they have come up with 2 spearate o/p decisions. I think procedurally we are going to have to submit two separate GL24s although as you say ensure that the 3 appeals are combined in one hearing and depndant on the suprcession being upheld. Even if we do lose the supercession appeal I believe there are in this case some distinct legal grounds to reduce any overpayment amount recoverable (we're talking in excess of £30K...so i really hope so!) so need to ensure that that appeal is absolutley proceduraly watertight, as it were.

if the worst happens has anyone had any success with getting a 'recoverable overpayment' written off or reduced on health/ hardship/ compassionate grounds or similar?

....More to the point I would have thought are the grounds for taking the decision back ten years - what grounds are they stating in the decision letter? Misrepresentation? - failing to report change of circs? What evidence do they have to support their case....If that was the date of the original application then either there was an indefinate award made, or there have been at least one renewal application since then?

You've made no mention of fraud, or a fraud investigation - given that this appears to be a case of a £30K overpayment. The overpayment decision can't have just come out of the blue - the client must have had prior corrospondence.

Finally, Is there entitlement to other benefits linked to the DLA, such as I/S, SDP, CA and/or HB/CTB ?

hi mike - didn't want to put too much info up here.
there was an IUC.
change of circs from dialysis to transplant (first transplant failed, back to D then 2nd transplant) and undeclared type of parttime work which they deem incompatible with the level of the award.


no other benefits have ever been claimed by the couple they've always worked all their lives - even now past retirement age....

Hello

How did you get on with this case?

I have a similar one coming up.

Client on DLa high care and low mob and after fraud investigation into him working they have disallowed DLA on grounds of failure to disclosure a change in his condition. Severe mental illness and was working as a support worker.

Thanks

I have a similar case where the DWP are going back nearly 5 years because they say the client was doing work incompatable with his claimed level of disability (had HRM and LRC). He did say in an IUC that things had improved somewhat and that especially his care needs had reduced, but he still had significant difficulties with walking. He reported the fact that he had started work and was informed that this would not affect his indefinite award.

I have put the argument that it was open to the department to look into entitlement when he reported that he had started work but the DWP has not responded. In a case some years ago I successfully argued that the client was not aware of the intricacies of the entitlement rules and still considered he had disabilities, so did not know that the improvement was a material fact which had to be reported. I now cannot find any case law to support this argument.

Any suggestions welcome.

eek! i have one coming up too, and i'm looking at CDLA/5196/01, CSDLA/637/06, CDLA/2115/03 and CDLA/179/07.

I've got one too - £25,000 O/P

Work incompatible with level of DLA.

Seems to be a lot about at the moment eh?!!

Thanks jj. I have found a summary of CDLA/2115/03 but can find no trace of the others you mention. Can you tell me your source please?

CDLA/5196/2001 and CSDLA/637/2006 are available via the www.osscsc.gov.uk website.

However, CDLA/179/2007 doesn't seem to be available online.

blimey - there is alot of it about then.
unfortunately our case is horribly complex and an additional(but not insurmountable problem) is that our client is not entitled to free legal advice on a means test (which, I know, is very mean) - and i'm afraid we are a firm of solicitors not a VSA and so our client is considering what he wants to do. To date there has been no progress, but as and when I will let you know.

We would be very interested to hear how other peoples cases go...

hi anned

i had to get copy from OSSCSC, but i've just forwarded a copy to rightsnet...

Thanks to jj CDLA/179/2007 is now available on rightsnet.

no probs. back to basics - is there a CD on interpretation of video evidence? i have only been able to find the 2004 CD on the human rights issue, which isn't what i'm looking for. i have an idea i once saw such a CD, but haven't been able to find it, and with case law coming out my ears have reached the state where i don't know whether it was a figment of my imagination, and have to ask rightsnet colleagues if anyone knows what i'm talking about?

Not sure if this is what you're looking for, but I'll post it anyway:

R(DLA) 4/02 (aka CDLA/2037/2000)

www.osscsc.gov.uk/aspx/view.aspx?id=197

hi kevin, no, unfortunately, i've seen that one, (couldn't remember the number and got the year wrong!). thanks, anyway.

We were successful re HRM at appeal using CSDLA 637/2006 because supersession had been done on a decision re care only and there was evidence that there had been a previous decision which probably covered mob but no trace of the evidence used to reach that decision. I got the impression that the tribunal was unhappy that the HRM could not be superseded. A presenting officer was present and the chair asked him to contact the office to try to find evidence to allow supersession.

We were unsuccessful on care because client conceded his care needs had reduced. We argued that this change had happened at a later date but the decision was that the overpayment of LRC was recoverable for the whole period.

My client does not want to pursue the matter further but it will be interesting to see if the DWP ask for reasons.