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reinvestigation of same case

dizzymare
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I have recently been asked to assist in a case concerning deprivation of capital.  The man in question has had all benefits ended as a result of this. The client is on the autistic spectrum (high functioning).  Client told me that he went to appeal in 2011 but couldn’t provide much more detail than that. I was doing a letter to challenge HB as well as ESA and as we can access HB records to see if there had indeed been a previous appeal and if so, on what grounds was it won. Lo and behold, I find that in 2011, all details of the capital were provided (left to him following death of Father) together with all the circumstances of why he had given the money away.(possibly financial abuse) I can see that JSA was suspended for 3 months and then there is a decision from DWP decision maker which quite clearly states “no deprivation”. Benefit has been in continuous payment ever since.

I have spoken to ESA who say they have made a decision that clt failed to declare capital and then deprived himself of said capital; and JSA have also made a decision (he was in receipt of this until early this year) going back to 2011. Obviously, I will be challenging this and sending them copies of everything to say he clearly didn’t fail to declare and that the DMA decided no deprivation, but are there any regs to say that they cant investigate the same case twice? (there have been no changes, the money hasn’t been returned) -so why would they decide 4 years later to look at it again?

I suspect that due to the passing years, there is no record of previous investigation at DWP but if there are regs to say they cant just randomly decide to reinvestigate, I would prefer to put it in my recon letter. (apologies, it is late Friday and im feeling lazy so hoping someone will be in the know!)

Jon (CANY)
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As this is a decision on a different claim or in respect of a different period, I am not sure that the DMG helps you, except perhaps at para 01220:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/473995/dmgch01.pdf

01212   Res judicata prevents a judicial authority from deciding a matter that has already been decided by a person of similar status. This principle is given effect for DMs by a provision in legislation1 and is also known as the principle of finality (see DMG 01150 et seq).
Note:
This does not apply to most determinations and findings of fact - see DMG 01180 et seq.
1 SS Act 98, s 17

01213   Once a DM has made a decision, a further decision cannot be given on the period of that claim, or the outcome of an application for revision or supersession, except where the later decision is given by way of
1.  revision
or
2.  supersession
or
3.  appeal1
1 R(S) 1/83(T), R(SB) 4/85
[...]
01220   There is a common law requirement that DMs should observe the rules of natural justice. The rules are not prescribed collectively but they represent the manner in which justice is expected to be achieved. An unbiased approach is needed, reflecting the principle that impartiality is at the heart of the judicial process.

dizzymare
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thank you Jon. It is the same period (but obviously also covers all the time since the last decision too) It is partly a different benefit (ESA) but also JSA have revised their previous decision too and taken it back to the same period (so the same benefit) there have been no changes whatsoever to warrant this.  I shall send all the evidence that this has been looked at before and then use the guidance you have given - thankyou for your help

Mike Hughes
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I have the impression anecdotally that there is an increase in the number of cases involving overpayments where cases that were long since done and dusted are being trawled through and resurrected. In part I’m aware this is due to the long slow death of Debt Management as a concept and agency. In part it has the smell of either a

- ministerial instruction to grab whatever you can. Remember the Liam Byrne note? I just have that sense of coffers being genuinely emptied.
- the sort of speculative tat being done by Concentrix on behalf of HMRC.

Just about to get something up on the GMWRAG site re: the approach to NAWRA from the Money Advice Trust about DWP and Direct Earning Attachments in cases where the statute of limitations has expired. That builds on this anecdotal impression.

I would be inclined to pursue it to MR/appeal and humiliate them at the appeal hearing. Annoying as it will be, it’s not going to be hard is it!

dizzymare
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thanks Mike - I will definitely be pursuing this, as really, it feels like no decision is sound if they can jsut pick it up and have another look whenever they choose. They definitely can say that he didnt declare the capital as I have evidence that he did. Just disgusting that someone with autism who has been ‘misled’ into parting with his money (but we cant prove this) should have to go through all this stress, when he has already been through it once before.

Tom H
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I think there’s insufficient info to answer the question.  If there’s no dispute that the capital was beneficially his then his JSA should have stopped if the capital exceeded the limit.  If his capital subsequently fell below the limit, a new JSA claim should have been made followed by a new decision.  But I appreciate that in the real world it’s often not as straightforward procedurally as that especially where the DM only learns of the beneficial ownership some time after such ownership started or after the capital has been spent/used.  You refer at one point to the JSA having been suspended and at another to it having been revised.  You need to re-post when you have more info about the JSA decision you’re challenging.  Even if he disclosed in time it wouldn’t have prevented the JSA ending if his capital was too high.  Disclosure and entitlement are separate issues.

[ Edited: 16 Nov 2015 at 06:33 pm by Tom H ]
dizzymare
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sorry Tom -  he inherited the capital in August 2011. He declared to DWP that he had received the capital in August 2011. He gave the capital away in August 2011 (£50,000). He supplied details of why and when to DWP. They suspended and then ended payment of JSA following an investigation into the circumstances of why he gave the money away and whether he had deprived himself of capital.  This was challenged - not sure by whom or how far this went, but given the time scale it is likely it was a reconsideration rather than an appeal.  DWP then issued a decision to say there was no deprivation. They then paid JSA - it would seem continuously (as he gave the money away more or less as soon as it came into his possession). I dont think there was a gap in payment (or if there was it must have been less than a week as HB has run continuously - informed by DWP decision) JSA has been in continuous payment since that time.

Clt claimed ESA in March 2015 and was paid this until he failed WCA. That decision was revised and ESA meant to be resinstated and then for some reason they have ended payment of ESA and also revised decsion on JSA back to 2011 - stating that 1. He failed to declare capital and 2.that he had then proceeded to deprive himself of said capital - therefore bringing the notional capital rules into play = nil entitlement.

past caring
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dizzymare - 16 November 2015 06:40 PM

sorry Tom -  he inherited the capital in August 2011. He declared to DWP that he had received the capital in August 2011. He gave the capital away in August 2011 (£50,000). He supplied details of why and when to DWP. They suspended and then ended payment of JSA following an investigation into the circumstances of why he gave the money away and whether he had deprived himself of capital.  This was challenged - not sure by whom or how far this went, but given the time scale it is likely it was a reconsideration rather than an appeal.  DWP then issued a decision to say there was no deprivation. They then paid JSA - it would seem continuously (as he gave the money away more or less as soon as it came into his possession). I dont think there was a gap in payment (or if there was it must have been less than a week as HB has run continuously - informed by DWP decision) JSA has been in continuous payment since that time.

Clt claimed ESA in March 2015 and was paid this until he failed WCA. That decision was revised and ESA meant to be resinstated and then for some reason they have ended payment of ESA and also revised decsion on JSA back to 2011 - stating that 1. He failed to declare capital and 2.that he had then proceeded to deprive himself of said capital - therefore bringing the notional capital rules into play = nil entitlement.

I’m with Tom H on this one - and not trying to be difficult, but the uncertainty about the details of the challenge to the original deprivation decision makes me a little concerned…...have you actually have sight of the decision reinstating entitlement and stating expressly there was no deprivation?

Tom H
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Whilst it’s still wise to be cautious as past caring says, I think the new info does help.

It’s likely that the client was treated by the original JSA DM as having re-claimed JSA from the date his capital was gone.  The resulting outcome decision would, if the client’s story is accurate, have included a determination that he did not deprive himself to secure JSA.  That determination cannot bind a future DM looking at the issue of deprivation in respect of a subsequent claim for JSA or another benefit.  That’s because section 17(2) SSA 1998 makes a determination “conclusive” for future decisions only if regulations say so.  And in the case of a determination re deprivation there are no such regs.  See CIS/2540/2004 where it was held that there was nothing stopping the appellant re-claiming IS and asking the new DM to determine that she hadn’t deprived herself of capital despite the fact that a previous DM (and a tribunal) had found that’s exactly what she had done to the tune of £58k.

In the present circs, of course, we’re looking at the reverse situation.  We don’t want a future DM to be able to re-visit what was a favourable determination for the claimant.  I think the DM here is free to make a new determination that the client has deprived himself of capital but that determination is not worth the paper it’s written on unless it can be incorporated in an outcome decision.  The outcome decision here is a revision for which there’s only one legal basis and that’s Reg 3(5)(b) D&A Regs 1999, ie mistake or ignorance of material fact.  It’s settled law that “material fact” for these purposes must be a primary rather than a secondary fact. 

Primary facts in deprivation cases will include the initial value of the capital, the value of the individual purchases, gifts etc which diminished the capital, and the dates of the transactions concerned.  The secondary fact in deprivation cases is always whether the person’s significant operative purpose was to increase or secure their entitlement to benefit.  The secondary fact, therefore, always has to be derived from an inference of primary fact.  A secondary fact is, therefore, an interpretation of events, a value judgment, an opinion.  The House of Lords in Moyna has held that there’s a wide margin of appreciation when finding secondary facts to the extent that DMs are free to find completely different secondary facts without any of them being wrong.  The one exception being where a DM’s finding is “outside the bounds of reasonable judgment”.  In the present context, some Dms will look at the most innocent expenditure and see deprivation, whereas others will be prepared to give claimants the benefit of the doubt.  The point being neither would necessarily be wrong. 

That’s precisely why you cannot revise a decision just because one Dm disagrees with the secondary facts found by an earlier one.  There’d be revisions left, right and centre otherwise.  Instead, as stated above, the ignorance or mistake has to be about a primary fact.  Without a record of the original decision and its reasons it’s going to be virtually impossible for a revision to be sustained.  Especially as in present case the whole of the capital appears to have been deprived in a single week, making it unlikely that the original DM was unaware/ignorant of any material primary facts.

It’s different with the ESA in the present case.  The ESA DM is again free to make a new determination re deprivation just as the above DM who purported to revise the JSA was but, unlike the latter DM, he is not revising anything, just making a new claim decision, so doesn’t have to additionally prove that the original JSA DM in 2011 was ignorant or made a mistake of material primary fact.  In other words he can completely disagree with the original JSA DM’s decision re deprivation.  However, the added twist in this case is that the original ESA DM is unlikely to have even considered the capital issue.  Why would s/he?  The client had been quite happily receiving JSA since 2011and the ESA1 only asks whether your capital has been 5.5k or more in the last 6 months, rather than at any time in, as would be needed here, the last 4-5 years.  He, therefore, appears ignorant of a primary fact, ie that client got rid of 50k in a single week in 2011, which had he known about may well have made him re-consider the decision to award ESA.  The DWP will almost certainly be able to produce the original ESA decision as it’s only a few months old which will confirm deprivation wasn’t considered.  So I think the original ESA is capable of being revised and a new decision being made finding client was not entitled to ESA from the outset.  The amount of notional capital would be 50k minus a 4 years’ reduction by virtue of the diminishing notional capital rule.  Of course, the client would be able to argue at appeal that he was financially exploited and, hopefully, persuade a tribunal in the same way he persuaded the original JSA DM.

[ Edited: 19 Nov 2015 at 12:12 pm by Tom H ]
dizzymare
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Thank you Tom for all your time and effort here. You are correct that customer did re apply for JSA ( have been through paperwork with a fine tootchcomb) and though I do not have the original decision that there was no deprivation, I do have the electronic transfer of data sent to HB following consideration of the new claim for JSA which states just that. He definitely did declare the capital and kept all parties involved every step of the way.  I think it is unlikely that they will proceed with JSA (but who knows?)

However, I do agree that there is a possibility that they may revise the decision for ESA.

I have sent a letter together with copies of all correspondence - including the decision made 2011 that there was no deprivation and will await the outcome with interest.

Thank you all for y our help

Tom H
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You’re very welcome. 

A final thought.  It seems the DWP are not required to show that his significant operative purpose was ever to secure entitlement to ESA.  That’s because Reg 115(1) ESA Regs 2008 provides that any capital determined to have been deprived for the purpose of securing entitlement to JSA is capable of representing notional capital for ESA.  You’d think, however, that if the DWP have no legal grounds to revise the original JSA entitlement decision, as seems the case here, they would not be able to re-argue for the purpose of said Reg 115(1) that the claimant did deprive himself in order to secure entitlement to JSA back in 2011.  But that, unfortunately, is exactly what section 17(2) SSA98 allows them to do.  The law says they are not “estopped” from re-litigating that particular issue as it was only one determination, one building block, in the original 2011 JSA decision.  And whilst the latter is final (unless it’s revised/superseded/appealed), all of the determinations which it embodies are not.  That principle (ie of no issue estoppel in social security law unless regs expressly state otherwise) can work in a client’s favour in other contexts, eg overpayments arising from living together cases where a client is found to be living together so entitlement ends but later wins the separate overpayment proceedings by persuading a Dm or tribunal that he/she was not living together after all.

So even if the DWP do not proceed with the JSA revision or, if they do and lose that one, they get a second bite of the cherry when arguing that he is not entitled to ESA because he deprived himself of capital for JSA in 2011.  Hope that makes sense.

[ Edited: 22 Nov 2015 at 09:03 pm by Tom H ]
dizzymare
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well I am a bit confused to be honest Tom, but I will print off the post, look at the regs and im sure it will then make sense. I think you mean that DWP can look back at the events again in 2011, that means you will have a decision for JSA - no deprivation as there was no intent, and then another decision in 2015 for ESA looking back to 2011 when he had the capital to say that he did have intent which is ridiculous (just for the record, I think he did know what he was doing, and I think he did know the effect on benefits - but only because he was fed all that information by the so called friend who took his money and refused to return it) what he also wouldnt have forseen (as he lives in the moment) is the effect of the decision on his future. Clt has ASD and does not lack capacity to make decisions but has no understanding of the consequences. I dont think this is a clear cut case that we will necessarily win so just hoping we can get them to drop this based on the previous decision. I think it is a genuine oversight as the 2011 decision I am told is not on the DWP system, so for now I am going to stay positive and hope common sense prevails.

Tom H
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I don’t blame you for being confused as the principle itself is confusing.  And as you say hopefully it’ll make more sense when you’ve looked at the regs, especially Reg 115(1).

At risk of confusing you further, I’ll try to clarify.  The 2011 original JSA decision is definitely safe unless it can be revised which we are agreed is unlikely.  To revise they’d need to show that original DM made a mistake about a primary fact, eg he thought the capital was never beneficially owned by the claimant when in reality it was.  That’s unlikely as there don’t seem to be many primary facts other than the money was disposed of in a single week.  It might have been different if the deprivation had consisted of lots of transactions over the space of several months and the DM had not been aware of some of them.  As stated in an earlier post, the JSA cannot be revised just because a new DM now looking back at his colleague’s 2011 decision thinks the latter was just wrong.  That would laughably produce this reason for revision:  the DM was ignorant of the material fact that he was just simply wrong.

But we’re agreed as well that the ESA is capable of being refused on the grounds of notional capital.  What I was saying in my last post is that even where the JSA is safe and cannot be disturbed, the DM does not have to show that the client deprived himself with the intention of securing entitlement to ESA.  That might have been very difficult on the facts as there’d be issues about whether the client could have predicted that at some future point he’d become unfit for work and also confidently predict that his circs would be such (eg he would not by then have a partner working f/t) that he’d qualify for ir-ESA.  There’d be causation issues in other words between the act of deprivation and the eventual claiming of ESA.  I’m not saying that it’s impossible mind to deprive yourself of capital for more than one benefit at the same time.  It is, after all, possible to have more than one significant operative purpose.  Just it could be more difficult to prove, that’s all.  That’s precisely why Reg 115(1) says the DWP do not have to prove that the claimant’s intention was to deprive himself for ESA.  They can have another go at trying to prove that he deprived himself in order to secure JSA and, if successful, use that to deny him entitlement to ESA now.  The original JSA award would still be completely safe even if it was now determined in ESA proceedings that he had deprived himself for JSA in 2011.  As stated earlier, the only way the JSA award could be challenged would be by way of revision. 

Section 117(2) SSA98 allows the DWP the chance to make another determination about the deprivation for JSA and reg 115(1) allows that determination, if negative, to stop ESA not JSA.  But it seems you’ve got a very good defence to prevent that negative determination being made at the second time of asking. 

Good luck.

[ Edited: 23 Nov 2015 at 11:29 am by Tom H ]
dizzymare
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thanks Tom, that was really helpful. I will just wait with my fingers (and everything else) crossed and hope that they dont go down that route as it will be so stressful for the person concerned (especially as HB is now suspended too)