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ESA overpayment - neglected to inform of carers allowance
Hello
I have a client who has just been notified of an O/P of ESA from 2014 to 2019 the reason being that he did not inform ESA that he had a carer (his mother) receiving carers allowance. The O/P is for the SDP.
The client’s mother became his appointee in late 2019 so after the O/P period. The client has mental health issues and struggles to manage things.
His mother and the client didn’t know that they needed to tell ESA. The O/P is for £15K.
As the O/P was a failure to report a change, can anyone recall if the ESA claim leaflets or letters mention anything about carers? I’m trying to think of reasons for the appeal! It is purely ignorance but how many claimants even know about the SDP rules…
I can’t seem to find any caselaw on this aspect so if anyone has any ideas or has had similar appeals, I’d love to hear!
Cheers
Was his mother already claiming CA when he claimed ESA/SDP?
Waiting to find out…
We have a similar case so will be interested to see responses. It occurs to me that when someone claims CA the DWP must surely check with the person cared for, otherwise the system would be wide open to fraud. Conversely, the person cared for may not know that their carer has claimed CA. Either way, DWP must know of the CA claim and award, and therefore to stop SDP, without the ESA claimant having to provide any information.
Hello
I have a client who has just been notified of an O/P of ESA from 2014 to 2019 the reason being that he did not inform ESA that he had a carer (his mother) receiving carers allowance. The O/P is for the SDP.
The client’s mother became his appointee in late 2019 so after the O/P period. The client has mental health issues and struggles to manage things.
His mother and the client didn’t know that they needed to tell ESA. The O/P is for £15K.
As the O/P was a failure to report a change, can anyone recall if the ESA claim leaflets or letters mention anything about carers? I’m trying to think of reasons for the appeal! It is purely ignorance but how many claimants even know about the SDP rules…
I can’t seem to find any caselaw on this aspect so if anyone has any ideas or has had similar appeals, I’d love to hear!
Cheers
That’s a nasty one. I have a not entirely dissimilar one that is still trundling on over 4 years later…
RP v SSWP (SPC) [2015] UKUT 409 (AAC) establishes that DWP must show the failure was on the part of the claimant:
the onus will be on the Secretary of State to establish a breach of duty consisting of a negative, that is, that the claimant has failed to comply with a duty to disclose under regulation 32(1)(A) or 32(1)(B) of the Claims and Payments Regulations. Where the relevant records are available, a tribunal may be able to find that the claimant has failed to provide the required information on the basis that there is no record of such disclosure, although the tribunal may accept a claimant’s evidence that the information was given, but not recorded.
Included in this is whether the claimant’s duty to disclose was competently imposed on the claimant. Often, tribunals want to see evidence of the duty being communicated in official correspondence. It’s incumbent on SSWP to provide that evidence, not you.
PS v SSWP (SPC) [2016] UKUT 0021 (AAC)establishes that it is relevant as to whether the claimant “was ... capable of carrying out the necessary disclosure”. (para 30).
Although both Pension Credit cases (strangely enough), the above are still good law for overpayments of other (legacy) means-tested benefits.
Lacking capacity to disclose could then arguably intermingle with the imposition of duty if, for example, you find that the “duty to disclose” is spread across multiple documents, i.e. one letter told him to tell them about having a carer, and another letter entirely then gives him the correct office to contact. ME v SSWP (SPC) [2016] UKUT 12 (AAC). Pension Credit again weirdly!
I’d also try to argue that it’s unreasonable to say that SSWP was unaware he had a carer given that it’s the self-same department that awards CA, that it’s intrinsically wrong for the client to be held to account for DWP’s administrative arrangements/incompetence.
Great! I’m afraid to ask why the case is still ongoing…;)
Mother has been claiming CA since 2014.
Was his mother already claiming CA when he claimed ESA/SDP?
Mother has been claiming CA since 2014. Not sure if this was pre-ESA claim. Overpayment is from 12/14 and mother claimed CA 10/14.