Income Support overpayment and appointeeship

Client has Down’s Symdrome and was receiving DLA Middle Rate care and SDP with Income Support while in home run by Mencap.  Organisation called careTech were her appointees. She then moved to a council run home on 1/2/08. At this stage a change of circumstances should have been advised to the DWP by CareTech, as her DLA stopped.  However, this was not discovered until a matching exercise was carried out by DWP in Jan this year.  Client advised of an overpayment of £8000.  Her sister picked this up and an appeal was lodged on the basis that the client should not be liable as her appointees were in charge of her affairs. However, it went astray and had to be resubmitted.  Papers now received look as if appointeeship has not been considered.

CPAG says that the overpayment can be recovered from eitherappointee or claimant but depends on the facts.  Surely it was the duty of CareTech to advise of change in circumstances ie they did not use ‘due care and diligence’.
Can anyone advise of some Case Law that supports my case?

For a full discussion to see how the law has developed on this you would need to read all of the following: CIS/734/1992, CIS/332/1993, R(IS) 5/00 and CIS/2178/2001.

I have attempted to find these cases on Rightsnet but not getting anywhere. Where else might I find them?

The first two can be found at “Caselaw: Commissioners decisions on rightsnet”.  Go to the Toolkit area.  The third can be found on the DWP website and the last can be found on the Tribunals Service website, again go to Toolkit.

AQs an alternative have you considered a complaint to CareTech? One of our very good local care providers gave some very duff information to a client which resulted in a large overpayment. This care provider, when faced with incontovertable evidence of the c*ck up did the decent thing and paid off the overpayment on the client’s behalf.

On personal note I would say that it pained me to have to make a complaint to such a good, reliable provider and i cannot help reflect that had they been one of the less decent ones they probably wouldn’t have paid up, which somehow seems fundamentally unjust.

I’ve come across a case which turned on AA and local authority care homes. The appointee failed to tell PDCS that the claimant (who had dementia) had become permanently resident in the care home and so there was an overpayment. The appointee was ...wait for it….the County Council’s director of Social Services. The Judge found the overpayment to be recoverable and, in view of the Council’s failure to take proper care of the claimant’s interests, suggested that the council rather than the claimant should repay it. Meanwhile of course they had helped themselves to his benefit towards his care home fees, so he couldn’t have repaid it anyway.

Thank you all for your suggestions. I shall now write the submission!

A couple of other cases where the status and relevance of appointees was at issue (amongst other things) are R(A) 2/06 and CA/1014/1999.  I think both are on the Upper Tribunal website.