I have a client who had a better off calculation made by the job centre cand verified by the local council.
Client knew that his benefit would decrease but he would still be better off working his 16 hours.

The council missed off clients carers allowance in the calculations even though client had submitted this to them.

Council accept 1 official error
2 No relevent person caused the overpayment
But they think the client should have known there was a problem when he stil received full HB and CTB after his 4 week run on.

If client had been supplied with the correct information in the first place about starting work he would have been told he will be worse off.
It is to my mind the council who have placed him in this mess and he now faces an overpayment of approx. £2000,00 because the council didn't realise they made the error till 11 months later.

I gues he council will win this as I'm not sure the client can carry on with his appeal. All I canhope for is escretion not to recover as this will incur further financial hardship.

Has anyone got any thoughts??

Kind regards
Nigel

In cases like this it is always good to get to the appeal if you can. In deciding whether the claimant could reasonably have known the tribunal often decides on how much they like the claimant and how credible they find them. Sometimes tribunals apply the law they would like to apply rather than what actually exists. Remember that the council has to show that any reasonable claimant with the claimant's knowledege MUST have known, not that there was something wrong.

this client is faced with a financial loss of £2000 as a result of official misdirection, by both the Jobcentre and the council, having sought advice from them to find out where he stands financially,and the council accept that there was official error?

why should the public have to pay the costs of the tribunal hearing, and why should your client have the stress of a tribunal hearing, when it ought to be clear to the authority that it should not seek recovery?

jj

Do not see why it's clear that the LA should not recover. It is clearly an official error, and a bad one at that, but reg.99 is clear that it is recoverable. The original post says clearly that the claimant did expect reduction in HB so they did KNOW an o/p was being paid when HB did not fall. Unless the claimat took some steps (i.e. told the LA) that they were receiving an o/p cannot see on what grounds the LA is in error by recovering.

It is of course, grossly unfair - but that's inherent in the way reg 99 works.

the post says that the council think he _should have_ known there was a problem. one blindingly obvious way for the LA to find out what he knew, or what he thought, is to ask him. and then decide what he could reasonably be expected to realize. the claimant expected a reduction, but to say he knew he was being overpaid is an inferential leap, not a fact.

having spoken to two sets of officials about his circumstances, and knowing that they had full and up to date details of his income, work and all relevant factors affecting benefit entitlement, and having sought advice from them, as the experts, because he found it confusing, - why would he necessarily conclude that continued payments of HB must be due to a mistake by those officials, rather than conclude that he must be entitled to it under one of those baffling new deal thingies, because the officials obviously know what they are doing?

it isn't clearly recoverable under reg 99 (1) because sub-para 2 type o/ps are specifically excluded from recoverability.

reg.99 isn't inherently unfair, but will be grossly unfair if the determining authorities always interpret it on their own side.

why i say the LA shouldn't seek to recovery, even if this was a recoverable overpayment, which it arguably isn't, is because he is faced with a significant financial loss, due to an official error. and having taken steps to seek advice from officials, on the financial impact of his options, it is arguable that he should be compensated by the authority responsible. so it doesn't make sense to demand repayment and pay compensation.

in circumstances where it would be inherently unfair to seek recovery, the discretion should be exercised to waive recovery. standards of fairness _are_ expected from public services - they just have to be reminded...
constantly..

your turn... why do you say that this is clearly recoverable?

jj

Well - mainly because of the wording in the original post

"Client knew that his benefit would decrease but he would still be better off working his 16 hours".

If this is factually correct then it is recoverable. I do not like it either but I can't see how you can get away from it. Reg 99 does not distinguish between seriousness of official errors. No matter how bad it is - it is recoverable if the claimant "could reasonably have been expected to know". I cannot see any credible argument to say that when full benefit continued, the claimant did not realise there was some overpayment. If benefit had only been partial eligable rent then there is some room for doubt but when on full benefit its hard to argue that he did not know it would change.

I fully agree with you about that the LA should be asking the claimant but I do not think the regs back this. I am not in my office at the moment so I have not got my reference books. From memory however the authority is something like

"where a person seeks to rely on an exception to a general rule, it is for that person to show that they fall into the exceptional circumstances".

In other words the onus of proof is on the claimant for this issue.

I still have to disagree with you, reg 99 is inherently unfair in many cases. The implication behind it is that people who are already defined as being in poverty have an obligation to check if the LA has made an error by paying them too much. Then to put aside the surplus (which may need a benefit expert to work out exactly) for what could be many months before paying it back on demand. There does not seem to be any sanction on the LA for the official error - no matter how grossly unfair it is. Even worse, the interminable delays (mostly caused by LA inefficiency) means that the claimant is always expected to hold these sums for long periods.

In the real world it is rather difficult for someone on a hand to mouth existence to keep a savings account on behalf of a benefit authority.
Do the people who make these regs have any idea what it is like to be on the breadline?

When all said and done - this should not stop an appeal - what is there to lose?

hi derek

i don't want to get into an argument around semantics, especially since nigel is keeping quiet here, : ) but i didn't read the sentence you quoted as referring to his _housing_ benefit specifically.

from the LA's point of view, it knows that it has made an official error resulting in an overpayment, and it knows that in addition to the error, it has misdirected the claimant to the effect that it advised him he would be better off,,, when in fact he would be worse off. when considering reg 99 (1), it can't simply ignore those facts.

i would go so far as to say that in the general run of cases, when it knows that the overpayment is an official error, it would be wrong to issue blanket recovery decisions, and leave it to the claimant to show that 99 (2) applies to them. In a dispute, yes, the burden of proof is on the claimant, but it doesn't remove the need for preliminary enquiries on the part of the authority, which are needed for _it_ to show that the overpayment falls under reg. 99(1).

in this particular case, the claimant had two interviews in which he was given inaccurate and misleading information, and also knew that the authorities had all relevant information from him, so what his understanding was at the time the o/p started is anyone's guess. the point is, he should be asked, before any decision that 'he could reasonably be expected to know etc' can be given.

the official misdirection, which may have put this claimant into a 'mess' and financial hardship, if i'm not reading too much into the original post, seems to be ignored here. is there any reason why the LA should be concerned only with the o/p and not the loss it has caused to the claimant? what sort of public service are we talking about here?

I would have thought a pragmatic view could be taken in terms of waiving recovery, but certainly there is a question of whether the DWP or the LA should make good the claimant's loss as a result of the official misdirection. If the overpayment of HB is recoverable, doesn't it also become part of the financial loss that needs to be made good - or has public service given itself some sort of exemption? is it all powers, and no reponsibilities?

only slightly tangentially, my elephant memory again - it used at one time to be standard procedure to write to claimants before giving general benefit overpayment decisions in claimant error cases, asking why they hadn't reported X at the relevant time - or at least, this happened with contributory benefits. It gave the claimant an opportunity to make representations _before_ the decision was made. somewhere along the line that step got dropped, which i think was a very bad idea...but enough for now.

jj

This is all interesting stuff, I am supposed to be going to a meeting with DWP on overpayments and want to try and widen it out a bit. All your thoughts would help.

My email is gary@walthamstowcab.org.uk

Thanks

Gary Martin

Does the tribunal have the power to force a LA to exercise it's discertionary power not to recover?
Bearing in mind that power is contained in the regs.

hsteve

you need to read R(H) 3/04. In this a tribunal of commissioners goes to great (tortuous may be more accurate) lengths to say that tribunals do have power to consider discretionary decisions. But then say the practicality of doing it is virtually nil unless you can make a case on judicial review grounds.

Hi Nigel here.
Sorry not been able to see whats been written till now.

I have some more information which may or may not improve the situation.

1 Client did get better off calc done by job centre
2 He was then asked to go to the LA for checking as the job centre said the figures may vary.
3 Client went to LA. It now transpires that the LA did not do their own calcs but used the job centres and came up with the same answers. I am sure that if the LA had done heir own calc properly i.e. get clients info up first and verify with him all benefits he was currently getting he would have been told he would be worse off.
Because the LA seem to have cut theses corners this is where the confusion sets in.
I couldn't understand why 2 official bodies could miss the carrers allowance off the same calcs till now.

Clients wife says now that once he started work she had to go to LA with all her benefit books etc. to be checked as their benefit would be recalculated.
The client did not get any notification till June about changes to benefit entitlement.
Clients say that because they had been to LA etc. although they thought their benefit would change end of March they thought that it must be o.k. because they had taken all heir benefit proofs to LA in early March and nothing changed till June.
Since that time heir benefit entitlement has gone down and down.

They are clearly worse off as a result of working for £80.00 per week. But client likes his little job.

They also have a seriously handicapped son who has a special diet all sons DLA has to go on his care they also still get CA but for the LA to wait 10/11 months and say whoops we made a mistake and by the way we want £2000 back is just not on.

I feel very strongly about this case and I know I should not let emotion get in he way of the facts and the law. But it's still wrong morally.

I will catch up later. thanks for the support.

Regards
Nigel
P.S. This person clearly has learning difficulties!

To JJ

I agree with everything you say. My experience is that many LA assessors would also agree with you but find their hands are tied by policy instructions of their department. The reason why LA's appear to be very unfair over official error is probably found in the subsidy regime and the pressure from BFI inspections. While I have some sympathy for the pressure LA's are getting for recovering O/P's, like you I'm very frustrated when it looks as if they pass the consequences of their own errors onto claimants. It can lead to farcical situations. I have represented at an appeal tribunal in official error cases where the LA presenting officer admitted he did not agree with the fairness and where the chair did not agree with the fairness but said their hands were tied because of the regs - we still lost.

Nigel

Thanks for the further details. Whilst its difficult to give second hand opinions (you never know if youve got all the details right), I would think that you could make a fairly strong appeal case here. You may not need to include the fairness issues in the appeal.

To begin with the O/P was caused solely by the LA not acting on information given to it.
The regs say not recoverable if..."could not reasonably have been expected to realise it was an overpayment". Constructing arguments for a client with learning difficulties, who had been misled by two parties and who could not be expected to calculate the actual benefit which should have been paid - seems fairly straightforward to me. Put in those terms it would have to be an awkward LA who would take it to a tribunal.
The commentary in the CPAG HB& CTB legislation gives a lot of help on pages 462 & 463 and refers to a lot of cds.

hi nigel

i agree, there are certainly grounds for appeal - but it is worth asking for the LA to administratively write off the overpayment on the grounds of fairness to claimant and cost of appeal to tax payers.

if there are financial incentives in the system to treat people unjustly, it is actually not cost effective to ignore it. little people might seem easy to push around, but long term this is not cost free, and total police states are expensive to run as well as extremely unpleasant.

jj

I dont think the case law re burden of proving recoverability is settled despite Commissioner Jacobs writng in the following CH3439/2004 at para 22:

"..However, regulation 99(2) operates as an exception, for which the burden of proof is on the claimant.."

He has somewhat contradicted what he wrote in his earlier decision CH4065/2001 at para 1

"The legal burden is on the Secretary of State to show recoverability, although the claimant bears at least the evidential burden of proving the case that she alleges."

(I think reference to the Secretary of State intead of the LA is a typo)

The Commisioner wrote in a similar vein to CH4065/2001 at para 8 of R(H)1/02:

"Although it was of course for the Council to establish that there was a recoverable overpayment"

Many councils seem to think that the verb "to realize" in Reg 99 means simply "to be aware".

It is not a term of art and the dictionary definition is "to be fully aware, to understand fully" This is far more weighty than to simply "be aware"