Hi Peter,
I can’t see anyway around the 8 week rule in principle. In the case you mention, had a single person claim been made immediately, there would be no overpayment, but we can’t use the Notional Entitlement provision, because this case fails to tick key boxes (the problem did not happen at the date of the claim, and there is no compliance investigation).
I think that leaves basic entitlement and recoverability, as possible defences. So far as entitlement is concerned, can we argue that the correct entitlement figure is what HMRC should have calculated, taking into account the client’s actual report? In other words, we argue that the client acted reasonably in trying to report a change in the way she did, even that she was effectively trying to claim as a single person. This person may have had poor English/other extenuating circumstances. If so, we can then suggest that the entitlement figure used to calculate the overpayment is wrong. The client said her partner ‘may be gone a long time’. We know that entitlement is not an abstract concept etc, and is sensitive to claimant behaviour/action.
If we can therefore get the matter before a tribunal on the basis of an entitlement issue (assuming not too late for an appeal etc), you could have a chance, depending on how flexible the tribunal is. Please do not laugh if I am barking up an entirely wrong tree.
On recoverability, I say that the various claimant responsibility tests lined up in the current COP 26 must be subjective. So did the client act reasonably when she phoned HMRC, within the context of her ability to understand/respond? Problem is, even if you can make a case along those lines, you then need to show at least one HMRC responsibilities failure. I can’t see HMRC conceding that they have failed. From their point of view, what else could they have advised when your client phoned to report the change (apart from accept it as a new claim and advise client accordingly – see above)? I agree that the points listed at the end of your post are relevant, but I doubt if HMRC will agree, for all the usual reasons. Maybe the Adjudicator will see things differently.
What do you think?
Steve
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