Tribunal of commissoners - CIS/4348/2003 - decision dated 20/07/2005.
12 B v Secretary of State for Work and Pensions <2005> EWCA Civ 929

The above decisions argue that the overpayment is recoverable reagardless as to whether it is reasonable to expect the client to know they must disclose the mateerial fact or not if they client:

1) Knew of the material fact
2) Knew that they should disclose it once asked by the LA.

DO these two decisions act retrospectively?

I have a client that has overpayments dating from 1994 until 12/10/2003,the date of decision being 28/10/2005.

She did not disclose a material fact, this being a second house which therefore counts as capital. thus disqualifying her IS entitlement.
The only grounds i can think of that may help her at appeal is that she has at times quite severe mental health problems which would compromise her ability to understand the benefits system and that the application form asks if the cLient has a dwelling or other property abroad, but not actually a second house in the UK.

This unclear distinction plus the client's mental health problems are our basis of appeal.


Because my cli8ents overpayments dates from before the above decisions will overpayment from 1994 until the decision in 2003 or 2005 by the appeal court and commissioners tribunal be exempt from the "reasonable" caveat? or is it simply not worth the appeal?

The rules for overpayments in HB/CTB cases are different to those rules for other Social Security Benefits, such as Income Support. Although the CD you mention (which was subsequently heard in the Court of Appeal) is useful in looking at disclosure, it probably won't help you much in any case for HB/CTB. But, if anything, it will fortify the the DWP's position in respect of any IS overpayment.

For HB/CTB, the rule is (relatively) simple. If there is no official error (by the LA, DWP, HMRC), then the overpayment is recoverable irrespective of any other consideration. The issue of actual recovery of a recoverable overpayment is a separate, non-appealable, matter. The LA has discretion as to whether to recover, but it will be rare for recovery not to be sought in a case such as yours.

Even if there was an official error, the overpayment is still recoverable unless your client can show that:

1) she did not contribute to the mistake, AND
2) she could not reasonably have been expected to realise she was being overpaid (at either the time of the payment(s) / award, or any notice relating to the payments / awards).

Based on the info given by you, the ONLY possiblity (and this is slim pickings) of an official error would be if you could show the claim form didn't ask for a particular piece of information. Even then, the case as a whole would still depend on the facts and merits and whether a claim form can cater for every single possibility.

I'm not optimistic for your client.

Regards

I agree with Kevin D, you seem to have a lost case here. The overpayment is recoverable and most LAs will be motivated to recover it.

both of those decisions concern failure to disclose, and generally, the issue of disclosure arises on a change in circumstances. the date of the overpayment decision was after the case law judgements, and they will apply, if relevant, even if the overpayment period is earlier. however, what you are describing sounds like misrepresentation at the outset of her claim, and presumably, on successive claim forms, and the above decisions would not necessarily have any impact.

it's worth bearing in mind that the recoverability 'regardless of whether it is reasonable to expect the claimant to know they should disclose the material fact' is specifically in the context of there being clear and unambiguous instructions to the claimant of the duty to report the particular change of circumstances. Regulation 32 (1B) still states that ..."shall notify the Secretary of State of any change of circumstances which he might reasonably be expected to know might affect-...". The decisions do not rule of consideration of reasonableness in other cases where there is no specific instruction, so the wording of instructions by the authority is crucial.

misrepresentation cases were often more difficult, but again, it depends on the wording of the questions on the claim form, as to whether misrepresentation took place.

Thanks for your help everyone.
I agree with what you say, i will appeal to the LA's dept of kindness and sympathy for discretion!
I will still do a written appeal for the client re mental heatlth and the lack of clarity in the claim form.