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A recent case taken to Commissioner by LASA may be of some (limited) help to claimant’s who are overpaid HB/CTB.
Reg 99 uses the term “person acting on his behalf” two times:
1. In relation to whether a person acting on behalf of the claimant contributed to any official error (Reg 99(3)).
2. In relation to whether such a person ought reasonably to have realised that an overpayment was occurring.
Clearly the fewer people into whose knowledge about and contribution to an overpayment the Tribunal can inquire the better for claimants.
Analysis in Findlay (page 461) suggests that the “person acting on his behalf” in Reg 99(3) “probably also includes those who are dealing with the authority on her/his behalf on an informal basis”.
Part of the grounds of appeal used by the claimant in this case (the claimant herself had learning difficulties and really wasn’t in a position to realise much at all) was that the Tribunal had been wrong to say that the claimant’s family members (who helped with completion of forms etc) were “person{s} acting on {her} behalf” as the wording should be given the narrower meaning which only extends to those authorised under Reg 71 and other limited circumstances.
Commissioner Turnbull is explicit in his decision that he does not decide this point. However, he does say that:
“13. As regards the issue whether the Claimant, “or a person acting on her behalf” could reasonably have been expected to realise that she was not entitled to the payments, my provisional view is that the argument on behalf of the claimant that in that provision (i.e. reg. 99(2)) the phrase “or a person acting on her behalf” is limited to an appointee or other person with official status may have much to commend it”
Clearly the point is not decided (and the Commissioner does not rehearse the arguments we made in his decision) but I feel representatives may be able to argue that Commissioner Turnbull’s comments on the meaning of “person acting on his behalf” should be persuasive to Tribunals deciding similar points. Certainly, it shows that it would be worth arguing for the narrower interpretation of "person acting on his behalf" before the Commissioners in any case which is lost at Tribunal and where the decision of the Tribunal makes it clear that they took into account what people helping the claimant informally should have known etc.
I assume that as the same phrase is used both in relation to the causation of the official error and to “reasonably be expected to realise an overpayment” then the argument may work in relation to either test (surely the same phrase in two paragraphs of the same regulation will have the same meaning?).
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