Any help appreciated here. I have an appeal due soon re HB overpayment. Claimant widowed mother. Claimed HB for a number of years. Always declared income and showed benefit books as proof. Revenues section recently noted a code on benefit order book (which has always been present) It shows claimant gets an annuity. Her late husband had arranged this we believe. Claimant was unaware of this and had not declared it separately as it is part of benefit claim.
Large overpayment claimed. Client did not fail to disclose as it was there to see. any thoughts anyone ?

Findlay cites CIS/222/1991 as indicating that where the LA has information that indicates a need for further enquiries and those enquiries are not made, then the overpayment did not arise in consequence of a mirepresentation (or failure to disclose)

I have the CD if you can give me an email address to send it to

hi stainsby can i have a copy please.

andy

give me an email address or fax number and you will have it today

andrew.pennington@slam.nhs.uk

thanks in anticipation

In the interests of making you aware of the possiblity that the LA
could be correct....

If the LA can show that any resulting o/p is not a result of official error, then the o/p WILL be recoverable, irrespective of the knowledge of your client. So the issue will (apparently) centre around whether or not there was an error by the LA/DWP etc.

The LA will almost certainly argue that the presence of a "code" on a pension book does not amount to disclosure of an income. For example, it is a fact that the "k" code *USUALLY* indicates the existence of a private pension. However, this is not "ALWAYS" the case. The LA would, potentially, have various Commissioner Decisions on their side (although I'm sure some could be argued either way).

Two CDs, amongst others, that *may* be used by the LA are:

In CH/0069/2003, the Commissioner commented that the presence of an income on a bank statement (where that same income was not declared on a claim form) did not count as disclosure. It was further commented that the LA was under no *duty* to analyse the individual entries of bank statements. My view is that this argument could, subject to the merits of an individual case, be used for "code" cases - i.e. the LA is under no duty to make enquiries.

In CH/0571/2003, LA's are not under a *duty* to check the correctness of IS awards. The relevance here is that the LA could argue that this CD, in conjunction with CH/0069/2003, means it is entirely reasonable to rely on the statements/omissions of the clmt and there is no *duty* to make further enquiries on what might be regarded as "fishing expeditions".

I appreciate that the above is "LA friendly", but at least you can see some possible arguments that may be encountered.

Regards
Kevin D

As Kevin says, the K does not mean that a private pension is being received. A good portion of pensions were small amounts and were paid up in a bulk payment on retirement. In these cases, the K indicator still remains throughout. Providing a state pension book with a K code on there does not amount to disclosing it.

Furthermore, many La's have not been aware of the significance of the K indicator, until Data matching excercises brought this to to everyones attention and the very large numbers of undeclared private pensions has been a big surprise to LA's. We have successfully prosecuted several where it was an approriate measure to take.

Did she include it on the HB claim form?

How could she have been unaware of this regular monthly income regardless of who set it up?
Was she spending it?
Is it gathered up in her bank account and she has never known her bank balance?
What about the pension statement that are sent to her?

I find it hard to believe she's been receiving it all this time but was unaware of it. If she was aware, it should have been declared.

The evidence needs to be looked at in the round. The commissioner ruled in CH0069/2003 (as Kevin D pointed out) that LA's can not be expected to analyse bank statements in forensic detail.

I have many clients who do not understand their bank statements and end up with serious debts and incurring large bank charges as a result.

I personally find it hard to believe that many LA's are not aware of the significance of the k on the inside cover of pension books.

The DWP issued a list of codes on benefit payments books for LA's many years ago ( I am still using a dog eared copy to this day)

An assessor looking at an order book would not be carrying out a forensic analysis by realising the significance of the k. (S)he would only be doing a fairly basic part of the job.

If the assessor failed to realise its significance, it would in my view be an official error, and a Tribunal would then have to consider whether or not the overpayment was recoverable

The checking of Bank Statements by LA's is an integral part of the verification framework - we ask for three months statements for all accounts, and with all due respect it's not rocket science to look for unusual movements of money, or regular transfers/payments being made into the account from an unidentified sources - regrettably, these have in the past unearthed interest paying bonds, what have you, which weren't originally declared.
However, occupational pensions etc, when paid into an account are normally shown against an entry which gives some indication of who the payee is - in much the same way that DLA, CHB, IB is highlighted: thus making it relatively easy to spot.
Similarly, codes on payment books are relatively simple to decypher - and often need to be, in order to understand how the various elements of the actual benefit being paid has been arrived at. If LA benefit assessors are not aware of what they are looking at, they their training needs should be being looked at ...?
At the end of the day the question is did the LA have the information it needed in the evidence of Income/savings presented by the claimant - did they interpret the evidence correctly, or did they overlook a simple but crucial point?

Mike:

I readily accept that it is PRUDENT to look for unexplained entries on bank statements and codes on DWP books. However, if income (or capital) is not declared on a claim form, it does not seem reasonable (to me at least) to later claim that an income was "declared" simply because it could *possibly* be seen by the LA from other incidental documentation - especially where the relevant parts of the claim form have been completed to indicate that such income (or capital as the case may be) was not being received.

The cross-checking of documents may be integral to VF, but if an LA genuinely misses such an entry, I find it difficult to believe that it is reasonable to lay the blame at the door of the LA for a claimant's own failure to OPENLY declare (such as on the claim form) income or capital that they receive / hold. In my opinion, CH/0069/2003 supports the LA postition in respect of this issue.

As my posts to this thread suggest, this is one area where my sympathies are with LAs - but don't worry, there are plenty more areas where I am less than sympathetic to LAs!

Regards
Kevin D

I know many 'Advisers' are very biased towards the claimant and 'anti LA', but come on! The whole point of the claim form is for claimant to tell us the TRUTH about their financial situation.

Whether the K indicator is a known fact or not, it doesn't mean there's a pension, so why must we delay processing every claim to ask about it, when it's equally common for the K to be there and no pension is being received. Many LA's do ask, but we should be able to accept the claimant was honest, VF or not, with the information supplied, without the need for us to search for criptic clues.

Experience has taught me that some pensioners are very capable hiding their full income, with the sole intention of getting HB/CTB that they would not otherwise get and they are more than aware of what they are doing. Most cases have revealed and unknown bank account where the pension is paid to, so VF is no safeguard against those that are particularly prepared to be dishonest about their financial situation. The issue in such cases is that a dishonest claimant has cleverly hid the pension and the account and did not expect to be found out.

To then try and lay the blame at a HB processors door is being ignorant to which party was truly at fault.

I don't know that it is quite as simple as that Paul. In the case which started off this thread, the point was made that the claimant was ignorant of existence of this money, which can be the case in some circumstances.

I can appreciate what a number of contributors are saying about what constitutes proper disclosure, but I do think that if someone was deliberately seeking to misrepresent their circumstances they would usually ensure that the inciminating bit of information was not there in any shape or form to be discovered. Playing devils advocate a little bit myself.....could not the claimant advance an argument of "well you insist that we send in all this paperwork with our claims....don't you read it??"

To take a similar situation, when was the last time a self-employed claimant actually stated anything remotely resembling the "correct" amount of earnings on their claim form? Some have got their own ideas about what should be disregarded, some will deduct their own tax/NI, some just leave it blank and write something like "see accounts" on the form. My point is that we have to actually look at the documentary evidence to get to the right figure. If we later found that we'd got that calculation wrong, would we try and argue that there had been a "failure to disclose" by the claimant? Presumably not.

OK, it's not a totally accurate analogy, but it does demonstrate that this not necessarily a straightforward issue.

The claimant will have further difficulty if there was a box on the form asking if she had this type of income and she ticked no.

CIS/0756/2001 suggests that incorrectly completed forms can leave the claimant liable to have an overpayment recovered from them.