Hi everyone, looking for some direction on an op appeal of IS. client was in receipt of sdp in IS but that ceased when partners dla hrc stopped on renewal. partner was told by a rep that there would be a change in income but that dwp would sort it out, client does not need to do anything. both client and partner are illiterate. recently dwp discovered op through the generalised mathching service it amounted to nearly £12k.

client does not have any proof about the advice she was give from the rep and argues that both are unable to read. also lack the neccessary knowledge to assess income details/eligibility. they do not have learning difficulties.but have had limited education.

i know recent decisions have put the onus on claimants. so where do i start with a submission?

any help appreciated.

jav

Hi Jav

If you haven't already you need to read Hinchy v Secretary of State for Work and Pensions and B v Secretary of State for Work and Pensions. Then I think you will know where to start.

An argument I put in an overpayment case ran as follows but the point was not met as we won on other grounds.

"Second, the burden of proof here is on the Department. Its evidence has to meet a high standard. It is not enough for the Department to produce a sample letter. If the Department alleges that Ms…. was sent a notification detailing specific information which she was under a duty to disclose then the Department should produce evidence that the notification was issued in this case and not point to its general practice for evidence that it did in fact send the notification. In other words it is incumbent on the Department to produce a copy of the notification that was actually sent to Ms….. If the Department did not keep a copy then that should rebound on it and not Ms…..

In CDLA/1823/2004 the commissioner states, at Para 9, that in “the present case, there is no evidence in the papers before me as to what, if any, instructions were given to the claimant. Not only is such information required when considering whether an overpayment is recoverable under section 71(1) of the 1992 Act, it is also required for the purpose of determining whether a supersession decision is to be made retrospective under regulation 7(2)(c)(ii) of the 1999 regulations. And in setting the tribunal’s decision aside the commissioner directs the Secretary of State "to provide the tribunal with copies of the instructions given the claimant as to his duty to report facts to those responsible for administering disability living allowance".

We submit that the construction should be that the Secretary of State should produce copies of instructions given to that particular claimant and not claimants in general. Otherwise the commissioner would have used the plural instead of the singular. This is because it is not sufficient for the Department to say that this is what we usually do or what we should do. The Department has to show that this is actually what was done in this particular case".

Regards
Paul

Hi Jav,

One thing to think about:

What B and Hinchy have changed is the nature of what "failure to disclose" means. However, it is still the case that you cannot fail to disclose a fact which is already known. So if the Income Support office had knowledge of the stopping of the DLA then there can have been no failure to disclose. The question will be whether the card system of notifying the IS office of the DLA stopping operated in your case. If it did then there is no failure to disclose.

Who was this "rep"? If they were advising your clients as their own clients then they had a duty of care to get the advice right and (bearing in mind the left hand-right hand general level of non-communication in DWP and the clients' literacy problems) damn well made sure that the info DID reach the right quarters. They ought to have a record of any advice given.

Who knows, they might even have professional negligence insurance...