Hi everyone

I have a client who was overpaid I.S due to his DLA being reduced and him losing the SDP. He did not inform I.S. I rang to inform when he visited bureau for benefit check and i was told that a flag was on system to action the reduction but no one had taken action at that time. Obviously it was changed from that point but the overpayment repayment request has now arrived.

Any way forward on this one, i know the onus is on client but can we challenge given a note was on system for action that wasn't picked up on?

Despite Hinchy and despite B, a recoverable overpayment still requires that it was the claimant's misrepresentation or failure to disclose that caused the overpayment (s. 71 (1)(a) of the Admin Act).

Where there is an automated inter-office system for notifying relevant changes, particularly where that system is operating properly, where the relevant change is on the system, but an officer of the department then fails to act on that information - such as in your case - there's a decent causation argument to be made.

Thanks for that, does anyone have a submission along those lines they could email me at llipshaw@southhollandcab.org.uk please so i know how to argue it.

No sub - but you might want to take a look at the discussion on "causation" under s. 71 at pages 83-85 of volume III of the 2007 Social Security Legislation.

Though the Department ought to volunteer the information in respect of nobody having acted upon the flag on their system, I'd not count on it. I'm assuming the conversation where this came to light is covered by a contempraneous case note? If so, be prepared to include it in your sub.

para 18 of R(SB) 21/82 was pretty strongly worded authority for the causal link between the failure to disclose and the overpayment, and relates directly to the wording of the legislation - 'in consequence of'. this decision has been chopped by the tribunal of commissioners' decision in CIS 4348/03, but the context and focus was on 'failure to disclose, not causal connection...it is still actually cited with reference to the latter in the current DMG, which was amended in June 07

i will sometimes dip into the DMG for insights into the departmental approach (rather than authority) and it happens that i have a copy of the first issue AOG which i saved from the skip. : ) the old version of what is now 09130 - 09134 is interesting for comparison purposes - there is a note that the(causal) link is broken where the ofice administering the benefit was aware of the material fact but failed to act on it. also, the version of what is now para 09153 used to read as follows -
" The recoverable overpayment stops at the end of the period covered by the payment issued _immediately before_ the true facts became known. Once the office administering the benefit is aware of the material fact which was not disclosed, or is aware of the misrepresentation, any overpayment caused by delay in referring that information to an AO is not recoverable." (R(SB)15/87 is cited)

nothing like as explicit now, and i can certainly remember overpayments being calculated to seperate periods of recoverable and irrecoverable due to official error, on the basis of the causal link being broken. current para 09132 suggests overpayments may have more than one cause, and will be recoverable if there is a failure to disclose. this is a move away from the concept of causal link, and cites the Duggan case. i simply cannot see that duggan can be read in that way, and agree with the commentary past caring refers to in Rowland...

i can fax you the pages if you like... not suggesting that you bandy old AOG paras around, but tracking the changes might help you get to grip with the case law arguments... let me know...