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PENSION CREDIT OVERPAYMENT
I have a client who is being asked to repay £2400 which was overpaid as a severe disability premium when his DLA dropped from middle rate care to the lower rate care in Nov 2012. He was diagnosed with Alzheimer’s disease in Sept 2013 and was suffering the effects of memory loss and confusion for 2-3 years prior to this diagnosis. He now has an appointee but did not at the time the overpayment began. He did approach the CAB about how the drop in his care rate would affect his benefits and was told the Disability and Carers service would inform the Pensions Service and there was no need for him to do anything more. This notification did not happen and I later established it is a clerical procedure which should happen but on this occasion did not happen. I also established that the CAB don’t keep records of the advice they give to clients.
So his argument is that his responsibility has been diminished by the Alzheimer’s and therefore his responsibility to report changes to the DWP was also diminished. We have an Appeal Hearing booked for 19th December.
I was wondering if there are any Commissioners Decisions concerning this obligation to report changes in circumstances to the DWP for those with memory issues. Grateful for any advice. Thanks
I also established that the CAB don’t keep records of the advice they give to clients.
There will be a record of the enquiry.
I don’t think it’s a good idea to think of this in terms of “responsibility”. Where the responsibility lies for a declaration of change of circumstances is defined in law and it’s attached to the claimant or someone acting on their behalf. A change in their health doesn’t change where the responsibility lies. This is more about knowledge and capability.
So, whilst you talk about his appeal where is he actually at with the Alzheimers? Is he still capable of handling his own affairs? Does he still have knowledge of the material fact?
I’ve had cases, a chronic alcoholic springs to mind, where they originally knew (and accepted they must have known) the material fact, but their illness subsequently wiped all short-term (and subsequently long-term) knowledge of it. As soon as it was brought to their attention again they made a declaration which led to an allegedly recoverable overpayment blah blah blah. Won on the argument that at the time they ought to have made a declaration they had no knowledge of the material fact in any meaningful way.
I appreciate this isn’t that type of case. However, it seems to me that the claimant has a strong case in terms of their knowledge of the need to declare being tempered by seeking advice from an organisation qualified to give them said advice, which led them to the ‘mistaken belief, reasonably held’ that there was no need for further declaration. Citizens Advice should, as Gareth says, have a record of the enquiry at minimum and that should be enough on balance in terms of crediibility but there should also be a case record. A simple request for that along with bureau policy on case recording (i.e. was there an expectation of a full case record?) should move things along nicely. Let’s be brutal though. You’d have to be especially dim to record poor advice and generally the advisers that do such things tend not to have the best case records either (ooh, whole new thread there 😊).
Once you believe there is nothing to declare what else has subsequently been received from an official source that might challenge that version of events? My guess is not a lot.
So, there’s a possible argument about what the claimant “knew” along with what he was subsequently led to believe. Not sure the Alzheimers in itself is anything to the point though to be honest. If it is now much worse then, as with all claimants, responsibility cannot be abdicated unless done via appointee etc.
Thanks for your replies , as far as his Alzheimer’s goes now he has recently taken on an Appointee. I feel he still has knowledge of the material fact. He is very coherent ’ in the moment’ but anything that involves memory is not to be relied on.
Right. Think it comes down to whether disclosure could reasonably have been expected in all the circs. The CAB advice will play a big part in that but, evidenced or not, what he believes about that and any other subsequent advice received will be the key things.
Would B vs SSWP be worth looking at here?
story and link to decision here -
it will come down to whether your client was specifically told to notify changes - if they were then you can’t argue reasonableness - there is an absolute duty.
there’s some more discussion in this thread which might help -
[ Edited: 11 Nov 2014 at 02:35 pm by Daphne ]But don’t forget RILEY v TESCO STORES LTD (1980). That established CABx as expert advisors and liable for bad advice so there may be another avenue here.
..He did approach the CAB about how the drop in his care rate would affect his benefits and was told the Disability and Carers service would inform the Pensions Service and there was no need for him to do anything more. This notification did not happen and I later established it is a clerical procedure which should happen but on this occasion did not happen. I also established that the CAB don’t keep records of the advice they give to clients.
But don’t forget RILEY v TESCO STORES LTD (1980). That established CABx as expert advisors and liable for bad advice so there may be another avenue here.
Not read Riley v Tesco. I don’t think there’s negligence in this case. The keeping of records issue aside, just because it’s bad advice doesn’t mean it’s negligent. If it is the DwP practice to notify as above then CAB is telling it like it is. It’s DWP who have failed.
Read the linked thread. I need to re-read the case law. I remember agreeing with what HB Anorak said there. The causation argument risks depriving Hinchy of all practical effect. Still, I’ll use causation if it comes to it.
[ Edited: 11 Nov 2014 at 07:59 pm by Tom H ]Just for completeness… CABx do record advice given but we changed to a new recording system last year and access to the old CASE recording system is very limited. Your client can make a request for copies of all records held and if the relevant bureau cannot access the old CASE system then they can request it from Citizens Advice.