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Tribunal 17/04
Wife (82) informed local pension service centre husband was in hospital before 4 weeks were up. Husband's Attendance Allowance was stopped but SDP on pension credit was not. Attendance Allowance was paid by pension service (same office). After 7 months DWP deemed it a recoverable overpayment. DWP submission quotes Hinchey but both benefits were paid from the same centre. Is it reasonable to expect the client to specify both benefits (even if they were aware what an sdp was)? I am at a loss to understand why the DWP are pursuing this.

Not gone through the whole decision but this is the quote from the H of L decision in the Rightsnet summary.

'The claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the department. In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another. Her duty is to comply with ... the 'simple instruction' in the order book.

... I would approve the principles stated by the Commissioners in R(SB) 15/87 and CG/4494/99. The duty of the claimant is the duty imposed by regulation 32 or implied by section 71 to make disclosure to the person or office identified to the claimant as the decision maker. The latter is not deemed to know anything which he did not actually know.'

What did the PC award letter say about who should be informed of change of circs? Probably nothing more specific than the office paying the PC who presumably had already been informed that AA had stopped if they were paying it. PC letters usually refer to leaflet INF4(PC) which they enclose with award letters and advises about what they need to report. If the office paying AA has been notified that entitlement has ceased then surely any overpayment is not "in consequence" of the claimant's failure to disclose. They would only be telling the same office what they had already been told (AA has stopped).

I haven't read the whole Hinchy decision (at least not recently) so maybe it imposes more stringent duties on claimants but if not, and there were no more precise instructions to claimants (e.g. about which section they should report it to) then I would think you have a good argument? May need to check however about how many different PC offices were involved (e.g. if different offices process/adjudicate and pay PC) as this could weaken the arguments.

who paid her pension credit? the Pensions Service.
who did she report her husband's hospital admission to?
the dedicated Pensions Service.
Who is she supposed to report the C/o/c to?
The office paying the benefit, which was the Pensions Service.
(implying combined payments?, btw)
What did they do with the information?
Withdrew her AA, which at least establishes as a fact that the information was disclosed and received.
What should they have done with the information?
withdrew her AA and SDP.
Who has access to the computer screens?
The Pensions Service.

If she had reported it to the AA unit, she might be in a Hinchy situation. As it is, she has reported the hospital admission to the department paying the benefit (presumably in combined payments). She is not required to presume what the Secretary of State does with the information, although he has commited himself to 98% accuracy.

What is their argument on failure to disclose? I'm imagining that this 82 year old woman failed to tell them which buttons to press...how on earth have they got a failure to disclose grounds out of these this?

http://www.thepensionservice.gov.uk/pdf/busplan/2tpsbusplan0708.pdf
http://thepensionsgroup.com/pdf/pscust/pscust1oct07.pdf

Strictly speaking, the material fact that need to be disclosed to the local office was the suspension of the AA. Entering hospital was a separate material fact.

Apart from information given to the claimant about what needed to be disclosed there might still be another defence here. To ground recovery under section 71 then the overpayment must be a cause of the failure to disclose (note, not THE cause but A cause). Thus if the local office had the relevant information at its fingertips and did not act on it then the chain of causation between the failure to disclose and the overpayment might have been broken.

It might be more of a reach to argue that the failure to disclose was not A cause of the o/p in situations where the local office only had related information which may have nessecitated further enquiries. Each case will turn on its own facts.

The second paragraph should read "under section 71 the overpayment must be caused by the failure to disclose..."

Going into hospital is not per se a material fact in relation to income support or pension credit until you have been there ever such a long time these days. So unless the relevant office and indeed the claimant knew about AA stopping, the fact was not a relevant one and it's quite likely it isn't in the list of things to be disclosed for MTBs, or not at the 4 week stage. Anybody seen a copy of the relevant instructions?

I agree with all of the previous contributors and continued recovery seems unfair.

I would add in a 'causation' argument that the cause of the overpayment was not the failure to disclose the withdrawal of income support but:

1) As JJ says, the PS failure to act on the withdrawal of AA which they (appear) to have been paying;

2) the (assumed) negligence of the PS to give proper advice to the claimant's wife when she contacted them with the information.

Also, a claimant cannot fail to disclose a material fact of which the department was already aware (about which Hinchy was concerned), but as JJ says, and as point 1 above alludes to, the PS were seemingly well aware that AA was no longer payable.

The only possible caveat to this last point could revolve around which bit of the PS was paying the AA. It's usually paid with a retirement pension, where one is payable, and not pension credit. I'm not entirely sure of current interpretation, but it certainly used to be the case that a claimant had to report the change to the right department within the paying office.

Good luck!

PC award letter says:

"What should I do if my circumstances change?

If your circumstances change, the amount of Pension Credit you get may be affected...You should read the enclosed leaflet INF4(PC). This will detail the changes you may have to report"

INF4(PC) says:

p4. "Changes you must report...

If you have an AIP you must report changes about:...
* Benefits, allowances or tax credits
* Hospitals and care homes"

p7. "Benefits, allowances or tax credits
Tell us if you or your partner start to receive any social security benefits, allowances or tax credits.

If you or your partner are already getting any of these, you must also tell us if there are any changes to them.

Hospitals and care homes

Tell us if you or your partner go into or come out of
*hospital
*a care home"

Assuming this is what they did get, presumably this is what the PS will refer to in their submission? Important to refer to this as caselaw focuses on what the specific instructions may have been to the individual. Instructions to PC claimants give no advice about which section to report to and all a bit vague about relevant changes (e.g. have to report going in to hospital but AA/SDP not affected until after 4 weeks. I bet if someone did ring up on the first day of admission, nothing would be done and they would be told to ring back in 4 weeks time).


PS may try to argue that they had not been told that partner had gone into hospital (as per advice above) but this is a red herring. SDP entitlement stopped as AA not in payment not because of hospital admission. This would only leave PS with the argument that the claimant did not advise them of AA stopping but as they had already been told this by AA Unit and they had presumably acted on this (by stopping payment of AA) then the overpayment was "in consequence" of PS office not acting on info they had already got.


I would guess (acting as Devil's advocate) that PS might try to argue at tribunal that if the claimant had informed them as well (as per leaflet advice) they would have been more likely to put 2 and 2 together and realise the SDP should have stopped (i.e. claimant failure to notify was one of/part of cause of overpayment). I am not saying this is correct (personally think it is a crock given the situation you described) but it is worth preparing for if they haven't already raised this in their submission.

Further to all the above advice, if you go to the rightsnet home page bit, and then go on to the reference to Social Legal Practitioners group next meeting and then double click and scroll down to the minutes etc of the July 2007 meeting, both Paul Stagg and Desmond Routledge have written two really excellent papers (actually all there various meetings published papers are excellent and really worth reading) on overpayments.

Anyway returning to all the above advice,the Paul Stagg paper 'recent developments in overpayments' pages 8 - 9 'disclosure to whom' he cites CIS/1887/2002 (Commissioner Howell) is definitely worth looking at i.e. the bit about same office paying two separate benefits.

Oh and he cites CIS/4422/2002 too, again its a different scenario from Hinchy.

the claimant has 1 telephone number she can ring. (or 1 PO Box number if she decides to write)

there are 2 options when the call is answered - 1 for reporting changes of circs 2 for anything else.

so they have a specialist section for dealing with changes of circs -

"We will provide an accessible and convenient service to deal with applications and any changes of circumstances you tell us about" says the customer charter...(nb - i should have said above 96% accuracy not 98% - i was ...errr... inaccurate!)

the client is 'customer service managed' - ie the operator, with script, is in control of the conversation format...presumably at some point, the information of the hospital admission date is exchanged. I don't know if the c/o/c specialist section processes the change directly by inputting the data onto the system, or makes a note of the information, which is then 'broadcast' in some way, or listed on a report...?? does anyone know?

we do know that the operators sit with headsets and computer screens, and, at the flick of a national insurance number can call up all the relevant screens necessary, even if for information only.

i would hope that the claimant would then be advised that if her husband was still in hospital after 4 weeks from d/adm'n, that his AA would be withdrawn.

I would also hope that the operator has looked at what benefits are in payment, saw the SDP thingy (there aren't that many rates of PC) and advised her that SDP would also be affected.

now, the claimant is expected to notify relevant changes of circumstances but no more than that. she isn't expected to know what the SoS does with the information, so she relies on the person she is speaking to to have that knowledge. here might be the first problem, because there is some DWP preference for having phone operatives with limited knowledge. (i remember first encountering the then revolutionary concept of less knowledge is better because it is speedier and more efficient, because you don't ask so many questions, in the early days of the BA, when the Manager wanted to introduce a 'fast flow receptionst'... it has caught on, i expect it saves the SoS billions of squids) nevip is right that strictly speaking, it is the withdrawal of benefit that effects SDP, not the hospital admission per se. however, at this stage, the hospital admission is the only change she has to report. the operator now tells her that her reported change will result in the withdrawal of AA.

would it occur to Miss Marples, with a mind like a steel trap, to reply, 'in that case young man, i must report another change of circumstances - the withdrawal of AA"?

Non! mes petits choux, and why? because Miss Marples is a reasonable gentlewoman and would not presume that the person who has just told her that her AA will be withdrawn is an idiot and needs her to report to him what he has just one minute ago told her himself. She would not wish to inslut him or the Secretary of State in such a way. She would not wish him to think she were a senile fool, and wasting his time. She trusts him, and trusts that he knows his job. She completes her customer satisfaction survey and says 'ow 'appy she is with this convenient and accessible service which lets her pick up her telephone and tell the nice man what's happening in one call and he is so understanding and will take care of everything so she doesn't need to worry. that is, after all, what it says on the box...

if GAD is right and they are telling people to phone back to report on effective dates, it's rubbish isn't it...?

the Pensions service is supposed to be customer oriented not staff oriented. a few 82 year olds don't have minds like steel traps, and none have responsibility for linking the information they have provided, to the relevant computer systems, or making all the connections between c/circs and impact on benefit entitlement. the SoS pays people with public money to do that.

if he wants to pay staff peanuts and rely on technology, why doesn't the computer screen flash lights, ring bells and turn the sprinklers on every time an AA/DLA change occurs on an SDP case? they have had problems with it since 1991. that's 17 years ago.

failing that, what about equipping the phone operators with a hospital admission report flow chart - wot they are famous for - you know
1. check whether SDP is in payment
If yes...

don't tell me he hasn't!

see what you've started rob turner : ) ?

the commissioners have, on the whole, tended to interpret reports of changes broadly not narrowly, placing some responsibility on officials for recognizing the significance of whatever it is the claimant is reporting, and i think that's right, so if the Dweep are making the very fine distinction we've discussed here, imo it's a bankrupt argument, and i think there's a CD covers it, but i can't cite it offhand. there is no Hinchy application in your case unless AA was paid by the AA unit, and the change notified to them, not PS, which is not what you're saying...they know she reported the change - they withdrew her AA - they knew they withdrew her AA, and they failed to action that change correctly. what're they gonna do with the DLA/Pensions service merger, i wonder?

'why doesn't the computer screen flash lights, ring bells and turn the sprinklers on every time an AA/DLA change occurs on an SDP case'

Perhaps Rightnet could utilise the same technology every time the synapses of a adviser in West Midlands law centre start to overheat in response to the combined stimuli of Friday afternoon and the latest example DWP idiocy...

Thanks to everyone for very useful information and advice.
CIS 4422/02 and CIS 1887/02 are specifically relevant to the single office issue and are post Hinchy decisions (thanks Andyp4)

Had hoped to advise of positive outcome but Tribunals Service were only able to cope with one case yesterday afternoon - we were no. 3 and sent away with new date. Will post decision whenever....