Hi all, would appreciate some help. I am trying to prepare an appeal submission for someone with a £9500 IB overpayment. DWP say he failed to disclose he had an ill health/occupational pension. He applied for IB in Nov 2001. The DWP sent him an out of date version of the IB application issued in 2000. Its accompanying notes and actual questions on the form itself made no mention of pension income affecting the amount he could receive. Nevertheless he did write on the form that he was due to receive the pension soon. Client received a general letter asking for more information a few weeks later. He answered all the questions and again pointed out that he would be getting a pension soon and that he would inform them. Even at this point client willing to provide information when available even though he did not think it would make any difference. Client then wrote to them once his pension started. In 2005, he was looking into benefit entitlement for a sick relative and discovered occupational pension income does affect IB. He immediately informed the DWP who say they did not receive his letter giving details of his pension. They do however have the forms where he declared that he was due to have a pension start soon. I am going to argue that no failure to disclose, and also official error for giving him an out of date form.
Can anyone suggest any CD's I could use or any suggestions at all? Thanks.

IB isn't my area, but this *may* be of interest.

The issue of whether the clmt notified once he had definitely got his pension is simply down to balance of probabilities. Nothing new in that.

But, in HB/CTB, there has been a recentish CD where a clmt disclosed he was awaiting the outcome of a JSA claim. The LA nevertheless proceeded to determine the claim. JSA was subsequently awarded and a not entirely dissimilar scenario to your IB case ensued.

The Cmmr found that there was no official error by the LA in proceeding to decide the claim as the clmt was not actually on JSA at the time AND the clmt had a duty to notify the LA of his JSA. The CD in question was CH/4043/2005.

However, I'm aware that the o/p rules for IB are different, so it could be that the CD I've mentioned is not particularly relevant to your case. But, it seemed worth bringing to your attention just in case.

Regards

If it is accepted that he did notify them of his pension starting then no failure to disclose and therefore no overpayment unless it is thought that there was a continuing duty to disclose.

However I think that this would only be an issue if it was reasonable for your client to believe that the pension affected his IB.

This leads to a different point which is, what was your client's duty to disclose? The DWP have to show that he was told to report a change explicitly for the duty to come under reg 32(1A) of the claims & payments regs - absolute duty and for B v Secretary of State to apply.

If the DWP can't show this (such as a copy of notes sent to the client stating "you must tell us if start to get a pension")then the duty to disclose comes under reg 32(1B) of the C&P regs. Then your client only has a duty to report changes that he could reasonably be expected to know affected his entitlement.

If, because of the wrong information sent out by the DWP, the client was never told of the overlapping provisions for pensions and IB then I would suggest it hard to show it was reasonable for a claimant to know this given that IB is non-means tested and the rule is pretty obscure.

I don't think that you'll get very far with an argument that says he told them his pension would be starting soon would count as disclosure but it may be material to the issue of the duty to disclose. If he told them that he would get a pension soon then would it not be reasonable to expect the DWP to inquire about this if it affected his benefit?

David

cheers for that David, and Kevin.

just to add - the legislative change came into effect in April 2001 - the issue of an out of date claim form with out of date notes is a serious official error. new print versions with the new questions would have been issued, with instructions to destroy all old print versions.

if your client had actually started to receive his pension at the date of his claim, the causal connection between the official error and a resultant overpayment would be clear. the Secretary of State had failed to ask a material question, necessary for determining entitlement.

unfortunately, your client, at the time of his claim was in a 'limbo' stage between applying for early occ. pen. and the completion of the awarding process. he didn't know when exactly it would be completed, and he didn't know whether it made any difference to his IB claim.

full marks to your client - to be on the safe side, he told them what he could, unasked for, on his claim form. so what should have happened?

anything written on the claim form outside of the tick boxes, may have the effect of qualifying his statement - i think that this has been established in old CDs, but sorry i can't point you to them...it should not be ignored...

in this case, the qualification is highly relevant...the information provided meant that it would be unsafe to make an indefinite award, because an imminent change of circumstances was expected which would affect entitlement. it required further enquiries by the SoS - "soon" is too vague a word for decision-makers, who need specific dates, and i would expect your client to have been asked when he expected his occ. pen to be granted, with a view to the D-M establishing a suitable period for a limited award (C& P reg 17(3)) or award and supersession from date of change. He should have been told that occ. pen would affect his entitlement and he should notify the DWP immediately.

none of this happened, but your client notified them anyway - and now they can't find his letter...it is difficult to know what more he could have done...

i agree with Kevin's remarks about the usual balance of probability thingies...but i do find it very surprising that the IB section made no response to the information given at the outset about the occ.pen. - and whether any further info lurks in the clerical records which might strengthen the official error argument?

incidently, was you client IB only throughout the whole period, or was there any IS?

no he was on IB throughout, no IS. The information he added to the form intitially stated that he was definitely to recieve the o/p but that it had been delayed for several weeks. Therefore there was no doubt that he was to recieve an o/p.

thanks jj, your response too, has been useful.

What was the date of the supersession decision? What was the date of the recoverability decision ? Depending on the dates the overpayment may not be recoverable under section 71(5)(a) of SSAA 1992

Sounds like a strongish case on the merits but if you want to use a technical argument - that the DWP had no power to supersede retrospectively in this type of case, for decisions made prior to 6.4.06 - see this thread: http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=111&topic_id=1228&mesg_id=1228&page=.

Richard Atkinson

Thanks guys for your help. The appeal was successful. Tribunal decided that the Secretary of State did not show how appellant was in breach of his duty under Reg 32 of the Claims and Payments Regs.

Thanks again.