I have a client who has been in receipt of DLA HM and HC for about 10 years. The DBC have just told him that they have no record of his claim and don't believe he should have been getting it. They say it is the local IB dept's fault for deciding to pay it without authorisation. Claim is about to stop. I cannot find evidence that claim was made in first place. Have phoned round all local WR agencies and had no joy because claim was made so long ago. Don't know who helped him with application form, or even if anyone actually did. Can the DBC stop his claim on this basis? Is the burden on the client to prove claim was made or on the DBC to prove it wasn't? IB dept have sent out a new form for client to re-apply but client isn't keen on this. Any other suggestions?

i have a similar case which went to tribunal (before client came to me). It is slightly more complicated in that at some stage it involved client having to convince the local office that she wasn't dead, and they had got records mixed up. it was sorted out, but not properly, as she had the same problems in three successive years. DBU now say they have no records for her. Tribunal accepted that she had a life award, and were not happy with DWP's evidence - but it was on IS appeal for SDP - now SoS apppeal to Commissioner. DBU are saying they have no records, and i've had a letter from there saying they destroy records after 14 months. Our client hasn't had her AA for 2 years, so I think this is gross maladministration - it's the DWP's responsibility to maintain proper records - unfortunately, it's been headbanging stuff from DBU to date. Letter to CEO sent, and I'm waiting to hear if the SoS has been granted leave to appeal, which I have supported!!, in the hope of breaking through the brick wall.

Can only suggest you make big fuss about maladministration. you could ask the IB section their response to the suggestion that 10 years of unauthorised combined payments have been made, and request information about the number and timing of any authorisation checks and test checks and instrument of payment issue checks in the last 10 years. most likely explanation is that the authorisation form sent by DBU to LO for combined payments, has been 'weeded'from the clerical case paper in error, and DBU have deleted their records in a double whammy.

you might need to _insist_ on case going to the tribunal. expect DBU to ignore you and insist on new claim. our very frustrated client incidently, after her original good will was EXHAUSTED after 5 years of administrative errors, has refused to complete another form. She says she doesn't see why she should, because she had a life award.

the latest phase of her client's problems, which started with the premature recording of her death, was termination of payments on instructions from fraud section. fraud were involved by way of data matching exercise. the data didn't match up because the DWP can't keep its records properly. there was no fraud by this elderly disabled woman - can you see why i'm annoyed? : )

at least, she was not subjected to an IUC - fraud just stopped her money. no interview of any kind, least of all the kind that entertains the possibility that something is wrong at the DWP end, not the claimant's end -just an administrative stopping of payments, which doesn't carry a right of appeal.

jj

I'd strongly advise subject access requests under DPA to both DBU and local IB office. In a slightly similar case I had there was a copy of a DLA entitlement card sent to local office. DBU had said claim did not exist. With that card I got them to cough up an ex-gratia for several missed years. Without it I had nothing to pin on anything.

There may be such a card at local office showing a lifetime award. If that is the case they'd have to show grounds for supersession and a new claim wouldn't be valid.

hiya andrew

yes, good advice. in my case, i've obtained a full IS record print - it shows AA as another benefit in payment, for 3 years after DBU state there was no award, then payments were combined with RP, suggesting authority to pay was sent to the LO, which the LO is denying knowledge of.

i hadn't thought of the validity of new claim/supersession thingy - thanks.

what on earth is happening with life award records!!

jj

It took my client 10 yrs before she realised she wasn't being paid DLA. All she had was an old copy of one side of an AO decision awarding DLA at a review. I accept she could have had further decisions after this which might have stopped benefit but the DWP had no record of her ever having DLA award. They were so dogmatic for a while but I wouldn't let it drop, copying Leeds HQ and the MP into all correspondence. Eventually they waivered but wanted new claim form completing to which we agreed to save any further delay and they eventually paid 10 years arrears of HRM plus interest (and the client moaned like hell because it came in 5 giros staggered over a week for security purposes!).

Sue

Quite a result I would say...how on earth did she suddenly realise after 10 years that she hadn't been paid? I hope that as well as the moaning she thanked you for your tenacity in getting such a good result. Clients..don't you just love em sometimes?


As to the original problem, its hard to even know where to get started. I agree with the previous advice that you need copies of every record you can get your hands on, force the issue using the DPA if necessary. Its simply not credible that a payment in mistake could continue for 10 years. If however that really is the case you should clealy resist any attempt to recover any overpayment and appeal if required. BTW don't let let them try and recever any money under the common law of mistake, thats really not going to wash. Any recovery should take place under the statutory provisions to which the client will have a "defence" in that the OP arose by official error which he didnt contribute to.

If the DWP continue to hold that this was an admin error then clearly a complaint, ultimatley to the Parlimentary Ombudsman is very much in order.

Do you think that the client actually meets the eligability critera for the rates of DLA he was receiving? NOw and for the past 10 years?
If you don't think that he does then my gut feeling is that you should try and avoid a tribunal appeal unless they make a formal OP recovery decision and you have no choice other than to appeal.

What I dont understand is who at the DWP thought this would be a good idea? I mean why didn't they simply ask client to renew claim or obtain an EMP report and then supercede the award as apporopriate on the basis of new evidence? Anyway, good luck, it would be interesting to know how this pans out.

My client thought the SDP in his IS was DLA because he'd never been _paid_ DLA but his 'money' had increased after his successful application for DLA - it is possible to take ages to realise something awful has or has not happened you know! jj - a screen print won't do it has to be a full SAR of clerical records too. Those cards are in there somewhere if you're lucky.

The loss of records of lifetime awards cropped up a little while ago when DBU told everyone they were breaking the DPA by holding records for over 18 months and it was illegal NOT to destroy them.

Ophelia sails again eh?

PollyT I'm sorry to nick your posting here but jj did you get the email I sent you last Friday? If not can you email me on afis@stevenagcab.REMOVE.co.uk? thanks

In response to SLloyd, my client only became aware after chatting with others in her age group who weren't on DLA and realised she was a "bit short" and no, not an iota of thanks or even a smile when we got the result - just the moans about the method of payment. Yeah, don't you just love 'em at times.

My opinion in these cases is that the fact that a person is being paid benefit is prima facie evidence that they are entitled to it. It is therefore up to the Dept to show that they are not. They might be able to do this by providing copies of decisions ending the award but, as has been pointed out above, they only keep archives for 14 months.

That said, the 14 month convention should only apply if it is not a live case i.e. the award has ended. If benefit is in payment they should still have all the records of all docs back to start of claim. Therefore, I suppose the dept could make an argument that the fact that the file was destroyed is evidence that the claim had stopped because it wouldn't have been destroyed if the claim had not ended more than 14 months ago.

However, I would be horrified if a Tribunal accepted such an argument on the balance of probablities as it is, in my mind, far more likely that someone had incorrectly archived and destroyed a file than for the dept to end a claim yet still go on paying the money.

It may be worth asking for details of the procedure used in archiving and destroying documents, as opposed to ending a claim and payment. My guess is that there are quite robust procedures for the latter as the dept seems to exist largely for ensuring that nobody receives a single penny incorrectly (ooh cynical), whereas archiving documents seems to be done a bit willy nilly. Using this I think you could adequately demonstrate that it is far more likely that the file was incorrectly archived rather than the claimant has been paid large amounts of money incorrectly.

As I understand it, these files are archived in a file warehouse: it only takes someone to incorrectly index it by one or two digits and it is effectively lost for ever.
A tribunal should take the balance of probabilities approach: It would be fascinating to listern to a presenting officer trying to convince a Tribunal that they managed to accidentally put a non existant claim into payment...............

However, if a claim was live there should still be a computer record of it, but, as Mike says, where a file is incorrectly indexed the paper file will have disappeared into the ether, never to be seen again.

I suspect that, as there are probably hundreds of cases deleted each week its done in some sort of sweep on the computer system. I reckon that there would be a possibility of a live claim incorrectly being included and therefore deleted from the system. This would then presumably result in the paper file being shredded too.

also apologies for thread hi-jack and causing confusion.
my case has been to the tribunal, and the tribunal accepted evidence that client had been given a life award, and found as a fact that it's non payment was due to admininistrative error. the tribunal's treatment of the evidence was faultless afaics, and the only point of law on which it is challengeable is the requirement to be receiving AA for the purpose of SDP entitlement.

while i am still pursuing an administrative solution, and trying to cover all possibilities, i'm hoping that leave to appeal to the Commissioner is granted, and that useful clarification, as they say, will result, of the blurry areas between statutory decision-making and administrative decision-making, where these conflict.

our client appealed against the withdrawal of payments of both AA and SDP, but no action was taken on the AA appeal, just admininistrative stone-walling, but since there was no disallowance decision ever given on AA, it is at least consistent.

the DWP's evidence (on SDP issue) to the tribunal that it has no trace of records of AA implies that it has carried out searches.

jj

jj

Look at it from another direction........

"the DWP's evidence (on SDP issue) to the tribunal that it has no trace of records of AA implies that it has carried out searches".

I would be saying that this implies they cannot find the records, which is not to say they didn't have them - is the glass half empty or half full..........

mike, i think it's overflowing! : )

jj

Anyway, enough of this frivolity - going back to the original query -

logic seems to dictate that there was an award made: the evidence for that lies in the fact that the local office was instructed by someone at DBU to pay it - how else would they have known that an award had been made. To say that the local office paid it without authorisation is patently absurd. In fact there is, as we know, a system in place whereby the DBU sends a notification to the local office of an award so that an I/S applicable amount can be looked at to take account of possible entitlement to a disability premium etc. There is a number for the form they send but I can't remember nowadays (Age thing etc).
Secondly - to make an award a DM must issue a decision - to stop the award, a DM must make in effect what is two decisions - one that stipulates the grounds for the reconsideration and then the actual decision which ends the award. Ten years ago that would have been under section 25 of the C&P regs, which were changed somewhat in 1998 by the new regs that came in. But the basic process is still the same. However, the DM needs to know the date of the decision that he is reconsidering - in this case, as he can't find one, the only start date he has is the start date of the payments. Can he therefore make a valid decision - on what grounds?
The only grounds that immediately come to mind are "whoops we've issued an authority to a local office to pay DLA to someone who we are convinced never claimed it in the first place Milud". OK, so put that way it sounds simplistic, but isn't that basically their case?
By the way, does anyone know what rank of DBU officer completes, signs and then permits the issue of authorisations to pay the client to a local office?
Finally, it would be a shame after all this to hear that the customer in question has been in reasonable good health during the period in question - from his point of view I hope he has, but from the benefit point of view it would rather make the discussion a tad academic,.....

I feel that the primary issue is:- Are you convinced that your customer has mobility restrictions and day & night care needs?

If the answer is yes, then the secondary issue is:- the secreatry of state has 'a requirement to keep evidence relevant to an onging award so as to ensure that claimants are dealt with fairly in the event of any dispute..' Paragraphs 11, 12, and in particular 13 "requirements in law") of CIB 378/2001(*58/01) deal with this issue at length. The Commissioner (Dr.David Williams) has made references to the Public Records act 1958, the Data Protection Act 1968, the Human Rights Act 1998 and the Freedom of Information Act 2000.

I sinceerly hope that the above should assist you with proving the DBC wrong!

best wishes.

Whose responsibility is it to put these things right? I have a client who has had MRC for over a year, but didn't realise that this would mean he was entitled to IS on top of his IB. Apparently he did make an initial claim for IS in Dec 04 through the lovely contact centre, but didn't realise that the claim was never processed. His local office are denying any responsibility saying that they sent out the correct forms (cl never received them) and that it is no longer their problem - he'll have to make a new claim for IS and possibly will not get any of it backdated. Blackpool have evidence that they contacted the local office as soon as the award was made.

Surely the burden of proof is on the DWP to prove no award should be in payment.
1. If they cannot provide a file or original claim documents they cannot prove no entittlement .

2.Did the client fill in a review form or the DWP obtain new evidence which proved he wasn't entittled to DLA. If not what is their grounds too revise and stop the benefit, as I do not feel what has been said so far has legal merit.

3. In this case the burden of proof rest squarely with the DWP. Other wise they could close many a lost file claim on the same basis, given how many files they lose or shred whilst claims are still live.