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Where there is an appointee, does the claimant also get decision letters?
In my experience only the appointee gets the letter - reg 33 SS(C&P) regs) says that the appointee receives and deals with anything on behalf of the person who is unable to act - it doesn’t exactly say the claimant doesn’t get it but the implication seems to be there.
Interesting question which perhaps reflects DWPs generally shambolic approach to important issues with long-term implications.
Over the years I have seen multiple scenarios:
- claimant and appointee at same address = 1 letter to appointee.
- claimant and appointee at same address = 1 letter to each.
- claimant and appointee at same address = 1 letter to claimant with no reference to appointee.
- claimant and appointee at different addresses
... well you get the idea. Anything is possible.
i am my mother’s appointee (& deputy) and get her letters. if they were sent to her they would vanish….
But does she ALSO get the letters..?
My client has presented me letters sent to the care home, and has none that were sent to him. From this, can I infer that my client loses letters, or that the Pension Service are lying about him being an appointee?
You have a strong case for official error and non-recoverable overpayment. The DWP have not followed their own procedural guidance:
See in particular the section regarding form BF57.
Don’t forget to have a look at R(IS)5/03, as per page 1250 of WBH 2015/16, which notes that DWP should issue a decision that deals with the liability of the claimant and the appointee in overpayment cases.
Thinking logically, you have some pretty compelling evidence in the attachment and the lack of prior communications that DWP had failed to properly implement the appointee request in 2011 - on that basis, I think there is a strong argument to the effect that the appointee can’t be held liable for any overpayment for that period.
Further, given the evidence of a lack of capacity on the part of the claimant, I also think there’s an argument that even if there were to be a recoverable overpayment against the claimant, it shouldn’t be recovered because they didn’t have the capacity to understand their responsibilities anyway - I’d even go so far as to argue that the guidance at top of p.1245 on knowledge of a fact would be pertinent and that there isn’t even a failure to disclose either on the part of the claimant.
In the commentary at p.70 of Sweet and Maxwell volume III we note the second bullet arising from the case of B, which is “Persons cannot fail to disclose for the purposes of s.71 a matter unless is known to them. Whether a matter is known to someone is determined by applying an objective test.” So whilst the duty to disclose a matter does now seem to be absolute, regardless of the claimant’s mental capacity, there is still an objective need to establish whether that person did, in fact, know about the matter or matters that they should have disclosed in the first place?
[ Edited: 9 May 2015 at 02:08 am by Paul_Treloar_CPAG ]dp
Thank you all, this is helpful.
DWP are holding that the o/p should be recoverable from both parties. I probably mis-spoke when I said “person without capacity”, it’s more like “person with dementia who should really have had an appointee”.
Anyway, I believe I can argue for the “appointee” that the appointeeship was not put into effect (e.g. there is no sign of a BF57 in the papers or computer records, etc). And I have several arguments for the claimant (in addition to the points mentioned above, CPC/2021/2008 is very relevant to the facts of my case).
Have a good weekend everyone.
and as i’ve pointed out elsewhere, Re B was before the Mental Capacity Act, and i remain of the view that that is highly relevant where a benefit recipient has no capacity.
So, I have submitted that - although there exists an *application* for appointeeship - the evidence indicates that this was not put into effect until much later. The tribunal then directed that DWP to provide a signed and dated and copy of “the appointment”. DWP reply, by just referring back to the BF56 application form as “the appointment”. No mention of a BF57, ( .. “it can be used as proof that someone is an appointee”, as per Mick’s link). And more to the point, DWP have also failed to produce letters addressed to the claimant as appointee from the relevant time period.
I must admit, I’ve never seen a BF57, despite seeing quite a few clients who are appointees. I take it they are routinely issued though?