Is there any way around the folowing:

I have a client who informed the LA that there was an increaase in income in January '06. They did not act upon information until November '06 when they created the overpayment that the increased income caused.

Upon requesting they review the decision to recover based on LA error (they did not act upon received information) they have come back with a firm NO basing their argument on the fact that the claimant should have known they were being overpaid when they received the end of year notification letter in March/April and the increased income was not included on them.

Is there any way around this end of year notification excuse that I have had this certain LA use on several occasions.

Thanking you kindly

Ade

Does that mean they'll be accepting that the OP period from Jan up to the issue of this notification is not recoverable?

Being a bit of a devil's advocate as far as the rest of the time is concerned, the LA's argument would seem to be a perfectly "respectable" one to put. A notification was issued from which the claimant might (I stress might) reasonably have inferred that s/he was being overpaid. It will all turn on how clear the notification was, how much of it this particular claimant could have been expected to understand and what significance they could have attached to the information in it.

What the LA cannot do is operate a blanket principle that just because it issued a notification the claimant should have known that they were being overpaid.

First of all, you do not have a single overpayment, you have a series of overpayments, all of which need to be considered in the light of what the claimant can resonably be expected to fully understand at the time the payment was made. This was confirmed in R(H)1/02 and again in CH/0939/2004

As far as understanding the decison letters, have a look at CH/2935/2005 especially paras 33-35

33If every letter had to be checked for financial accuracy by the recipient, that would be likely to entail either the recipient being forced to contact the council to go through those details with somebody, or going through it with some other person with professional experience of the relevant benefit. The council would not expect either its resources or those of agencies offering assistance with benefits to be used in this way, which would be a substantial drain on their resources.

34In the standard form first page of the letter awarding the benefit, the final paragraph draws attention to the notes on the back, but none of those notes relate to checking the council’s calculations for errors. The letter does also ask the claimant to check the calculations carefully and to let the council know if he thinks that any of them are wrong. However, for the reasons given, I find it unrealistic to expect most claimants to be able to check those calculations, and I do not consider that the council could realistically have expected that the vast majority of claimants, whether of normal intelligence or not, would have been able to do so. Nor do I consider it reasonable to expect claimants to act as the council’s auditors and to carry responsibility for any errors that they do not point out.

35If in fact a claimant does check the figures and turns a blind eye to an error that he ought to realise was in his favour, then such a claimant would not be able to take advantage of regulation 99(2). That claimant could reasonably be expected to realise that there was an overpayment. However, a typical claimant cannot reasonably be expected to read or understand the calculations, and if such a claimant does not read them, or tries unsuccessfully to understand them, then the council cannot assert that that claimant could reasonably have been expected, when each payment was made, to have realised that it contained an element of overpayment.

Stainsby - as regards CH/2935/2005 - do you have a hard copy you could fax to me please?

I've looked in the usual places but no record found.

Fax number 01229 830379

Thanks

Nicky

Ive faxed it to you, but I will also email the electronic copy to rightsnet for publication in case you want to do any cut and pastes for your submissions

Thank you - much appreciated.

Thank you for your replies, very useful, it has given me heart to take matter to appeal.

Stainsby bit cheeky I know but if you have that commissioners decision still on your desk somewhere i'd love a copy. Fax no is 01477 539 251

Cheers

Thanks to stainsby, CH/2935/2005 is now available on rightsnet.

Thanks Stainsby got the fax.

I feel this could be very useful on numerous cases !

Just a note of caution.

The CD Stainsby relies on (understandably), is enormously "claimant friendly". Which, from the perspective of the claimants / welfare rights etc, is all well and good. But, it is worth bearing in mind that there are several other CDs where Cmmrs have made it clear that clmts do in fact have a duty to read notification letters and take into account the content.

The points about clarity of letters etc still applies though.

Regards