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PC overpayment appeal
Have client with PC o/p because of failure to tell PS that her husbands DLA had stopped and so carer’s premium should not have been paid. We requested a MR of the decision and requested PS did not recover. She came to see me today as MR decision unchanged. I then discovered the amount of o/p is some random figure thought up by the PS rather than the amount client actually received for the period in question!
My question is if I appeal on the basis the amount is incorrect are PS likely to issue new o/p decision or will they simply amend the amount as part of the appeal process and we will need to continue to argue non recovery for failure to disclose (difficult test to meet I know)
Well if you don’t argue the amount of overpayment as part of the appeal, there’s no chance of the PS changing the decision. And maybe the tribunal will miss the fact that the calculation is wrong too.
So what’s to be lost?
I assume the random figure is larger than it should be?
I think that it will come within Section 30 of the social security and child support (decisions and appeals) regulations 1999 http://www.legislation.gov.uk/uksi/1999/991/regulation/30/made
In an ESA overpayment case I had recently the DWP made a ‘revised proposed overpayment decision’ which was less advantageous to the claimant, i.e. the overpayment was more than originally demanded. Two appeals were held simultaneously, one against the original decision and one against the revised decision.
If it does the same in your case and this is advantageous to the claimant, i.e. the DWP concedes that the overpayment should be lower than originally requested, I think that the appeal will lapse and need to be reinstated as an appeal against the new decision.
I assume the random figure is larger than it should be?
That’s what I thought too.
But re-reading the post I’m not so sure now. If the figure is significantly less than it should be I’d advise to leave well alone. If non-recoverability is going to be hard to argue on the facts then it’s likely the client will lose the appeal anyway - and increase the risk of either the PS or FtT revising the calculation and susbstituting the correct figure.
If at some later date PS realises its error and wants to increase the amount of the OP, that would be a new decision with new appeal rights.
Used to be the case that any revision of the amount would lapse the decision and you’d start again but I’ve had tribunals and DMs go all ways on this even recently. The bottom line is that there is case law which has long established that a break down of the calculation of the o/p needs to be in the appeal papers. So, if not, I’d start there. The bare minimum is that the calculation must be understandable to the appellant. I have used that to argue that simple applicable amount (summed and not broken down) versus total income, is insufficient. Very much depends on the period, amount and complexity as to the outcome of that argument.
However, the other argument here is as to whether there’s a need to disclose the benefit received by a partner; the clients understanding of what needed to be disclosed and from whence that derived. Classic INF4 type territory.
Hi all thanks for your responses. Gareth the PS estimate is about £250 more than client was actually paid. There was no clear breakdown of o/p in the MRN
on a lighter note, called PS today to request a call back, was told it would be 10 working days, 5 for the email to get to the correct section (yes honestly) and 5 days for them to call. When I asked what happened to the 3 hour call back I was told such a thing had never existed! I don’t deal with the PS that often but I am sure we used to get 3 hour call back…didn’t we?
Our experience of the PS is mostly awful. Delays, what appears to be wilful obstructiveness, callbacks promised but never happening, making up law, sending unprepared Presenting Officers to hearings etc. We’ve had to involve the MP to get anywhere in a couple of cases.
Our experience of the PS is mostly awful. Delays, what appears to be wilful obstructiveness, callbacks promised but never happening, making up law, sending unprepared Presenting Officers to hearings etc. We’ve had to involve the MP to get anywhere in a couple of cases.
Cannot disagree. What was once portrayed as a “gold standard” service is in danger of becoming a forgotten outpost to which few are paying attention as they disintegrate into a shambles.
My fave of 2017 so far. The PS PO who was connected by video link which took 15 minutes to get working only to then announce that she was really sorry but she was unable to participate as she had other more important things to do!!!