client is his mother's appointee, client's mother was self funding in a care home, 2 - 3 years ago her funds dwindled, and her condition deteriorated, she could no longer afford her care home and was moved to anotherby social services near to her son. She had been receiving AA at highest rate, whit move she is now only partially self funding, social services picking up the shortfall. Client was only aware that AA was not means tested and was for help with mother's care, her condition had deteriorated, so he did not see that there had been a change in circumstances relevant to DLA. Two and one half years later social services told him that mother should not be getting DLA, he rang them immediately and now has an overpayment of over £3500 - is it an argument that it was reasonable for him to rely on Social services, as experts in this sort thing, to inform him there was a problem, which they did eventually. He has no experience of benefits.
Or does the recent decision on recoverability of overpayments by a tribunal of commissioners rule this out - I have started to read this but it is a little rich for me - I need an interpreter. So would a reasonable man expected social services to alert him - so the overpayment is not recoverable???

I will leave it to someone more experienced than me to deal with the issues regarding the grounds for appealing against the OP decision, but another thought occurs. If the OP appeal is subsequently lost you should approach the local authority who undertook the financial assessment under the Charging for Residential Accommodation Guidance (CRAG) and argue that in the circumstnces they should increase the level of her Personal Expenses Allowance to reflect the AA that has to be repaid. You can access CRAG on the Department of Health website.

Julie

Unfortunately, the reliance on social services to report changes of circ's argument, is unlikely to succeed. A change of address is a notifiable change of circ's listed at the back of order books. (I presume that this was the method of payment).

The appointee, who "stands in the claimant's shoes" is a person (along with the claimant) duty bound to report the relevant change of circ's.

R(IS)5/03 (authoratative on this issue) states that in failure to disclose cases both the claimant and the appointee are liable. However, recovery should not be sought from the appointee if the benefit has been applied for the 'benefit' of the claimant. If the appointee has retained the benefit (say kept it in his/her bank account) then recovery should be sought from the appointee.

Interestingly enough R(IS)5/03 resurrects the old due care and diligence test from the supp' ben' regime, but, only in misrepresentation cases.

Regards
Paul

Thank you - I wasn't thinking about the LA reporting a change in circs - client notified DWP of change of address but not the change of funding since he didn't know it was relevant - but would it be reasonable for the client to expect the LA to alert him to the fact that since his mother was no longer entirely self funding no AA was payable, is it reasonable to say that Social Services are expert in this area and client could rely on the fact that they did not flag up a problem to reasonably believe there was no problem - so the money is not recoverable??

thanks - I did not know about this

You may want to check when the LA became aware of the receipt of AA. If it was declared at the initial LA financial assessment then it should have been treated as income for charging purposes. If not why not?

Many thanks

Shaun

A fair point, Shaun, but CRAG and the legislation permit LAs to depart from normal assessment rules for up to 8 weeks when a residential care placement is first made. Many LAs charge a fixed amount based on IS or PC levels, not including AA/DLA care payments. By the time full assessment is due under the law, that assessment has been carried out anyway and AA/DLA should have stopped; but, if it hasn't by the time of the assessment visit or interview, the service user/rep should be advised to notify DBU at once, thus discharging the LA's duty to give info to service users on benefits.

The subsequent full assessment, due to kick in usually between 4 and 8 weeks, will NOT take AA/DLA into account because by then it's not properly payable, even if it's still in payment.

Jim

are you saying that it is a fair argument to say that initially the LA should have flagged up the AA?? they did over 2 years later when they carried out a second assessment - sorry by I get very lost in social services - also what is CRAG??
julie

Sorry for the jargon, Julie. CRAG is the DoH's Charging for Residential Accommodation Guide. The DoH expectation of Social Services Depts is that they should draw service users' attention to benefits they can claim and also tell them to report changes of circumstances (like admission to care or hospital).

As far as I'm aware, there's no written legal obligation on SSDs to give advice on benefits, but it's poor practice if they don't. Of course, this means that the legal obligation to report changes rests with the claimant/appointee.

CRAG and the law indicates that AA/DLA care is taken into account as income, but leeway is given to depart from the rules for up to 8 weeks on placement. Hence, when full assessment kicks in, no account would be taken of AA/DLA care because it would be due to have stopped by then, even if it hadn't because advice to inform DBU had not been followed. In your LA's case, they didn't discover the truth till 2 years later, on review. I suppose one could say that best LA practice would be to do a follow-up check a month (say) after the initial advice was given, but staff resources are limited!

Jim

thank you - i'm finally getting there!! Client was not told at the intial assessment that AA should not be in payment - so I guess this is just going to be up to a tribunal to decide whether it would be reasonable for the hypothetical reasonable man to rely on social sevices in this instance.
again thank you all
julie