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Appeal to upper tribunal?

 

Cookie
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Apologies - this is quite long!

This appeal is concerning HB & CTB OP due to official error.  We argued Cl could not have reasonably been expected she was being overpaid due to her poor mental health throughout the OP period.  The OP period is from 2012 to 2016 and concerns 2nd child premium that should not have been included in the calculation.

I would be grateful for anyone’s thoughts on whether or not the decision should be challenged further?
Rough outline of the decision is –

the Tribunal agree that the OP is due to official error and as a result of significant ongoing mental health problems during period 2012 & 2013 Cl could not have reasonably been expected to notice the official error or to have realised she was being overpaid.  As a result of this part of the OP is not recoverable but only for the period 2012 to 2013 (which is a very small amount). 

Firstly, the tribunal states in its decision that because the Cl went back to work in 2013 she would have been well enough to realise she was being overpaid.  However, Cl was forced to go back because of financial difficulties, which she mentioned at the hearing.  Cl continued to suffer with ongoing mental health problems and still does to date, but said she has a very supportive employer. We provided medical evidence which confirms Cl was and still is being treated for mental health problems

Secondly, I feel the last sentence of the decision is quite contradictory because it states ‘The tribunal totally accepts that Cl did not at any time actually realise that she was being overpaid’.  Surely if the Tribunal accepts this then it should have found in her favour, no?

Would be very grateful for your thoughts please?

     
stevenmcavoy
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others may think differently but the core issue for me isnt if she realised she was being overpaid.  the issue is was she aware enough to know that a change of circumstances had occured and that this could be something that changes her circumstances and therefore should be notified.

most decisions letters give a “changes you must tell us about” blurb to place the duty on clients to report these.  if that has happened then for me the argument is “was she well enough to know the change had occurred”.

i hope that makes sense.

     
Cookie
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It does make sense, thanks you for your reply. 

Cl did report a change of circumstances, by providing copies of the tax credit award notice which only showed 1 child, they also received notification via their internal sources of this change, however, and they failed to act on both pieces of information, which they admit.

The LA are arguing that because Cl was sent numerous award letters (2012 to 2016) showing 2 children in the HB calculation she should have seen this was incorrect and notified them, and therefore she could have reasonably known she was being overpaid. 

I argued that as far as she was concerned she fulfilled her duty by sending in the award letters showing 1 child not 2, so when they sent the first award letter and subsequent letters were received, she believed the LA had done their job and calculated her benefit correctly.  Notwithstanding this, she was suffering with mental health problems throughout the over payment period, therefore they could not expect her to know she was being overpaid…

     
Cookie
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The tribunal’s decision states - ‘The tribunal totally accepts that Cl did not at any time actually realise that she was being overpaid’.  I don’t understand why they only partly found in her favour if this is the last comment they made within the decision.

Over payment caused by an official error when the claimant could not reasonably have been expected to know that they were being overpaid is not normally recoverable in law.  Therefore, I am wondering if the law has been applied correctly?? I may be talking total gibberish – as I said I do not have much experience with these types of cases….

     
Mike Hughes
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I broadly agree with your approach Cookie. I’d say Steve’s comments relate more to the law and caselaw around social security benefits and not necessarily local authority benefits. That said, it’s useful to check what the claimant did know and from where as it will usually fall well short of anything suggesting that a particular disclosure ought to be made. A bit like how reading the allegedly catch all, ubiquitous and “always received” INF4 leaflet only to discover it’s so general on many disclosures as to be either neither use nor ornament or a positive benefit to your case because it proves no claimant could have read it and concluded they needed to make a particular disclosure.

The words “totally” and “at any time” will be pivotal to any UT challenge. However, I’d also look up the caselaw about the level of technical knowledge a claimant is expected to have. I would venture that a second child premium is at the more obscure end of the scale. There has been plenty of publicity, for example, around limits on the amount of benefit for additional children for some benefits. It’s not difficult to argue that could muddy the waters for anyone not paying full attention and even more so given media misreporting.

I’ve had some success using newspaper clippings from papers the claimant read to show how easy it would be to come to the wrong conclusion.

As a total aside I also had a claimant who attempted to disclose to DWP via Twitter and who, not unreasonably, proceeded with the argument that he’d made a very public disclosure of which there was a public record and therefore, even if it wasn’t the right approach or forum, the onus was on them to at minimum respond and redirect. He won as their account makes no reference to it being unmonitored etc. smile

Should add that was only one plank of the argument!

     
Victor
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It seems a harsh tribunal decision but there is clearly a difference between,
“did not know they were begin overpaid”
and
“could not reasonably have known they were being overpaid”

e.g.
If someone throws away all their HB award letters without reading them they could not realise they are being overpaid. 
But it could be reasonable for them to have read the letters, and thus realise they are being overpaid. 

     
Paul_Treloar_AgeUK
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As the legal test is whether the relevant person could reasonably have been expected to realise that an overpayment was being made, and as they seem to have agreed that your client could not have known this was happening, I would certainly say they have a strongly arguable case for the UT.

You might want to have a read of this CH/617/2012 which summarises previous case law on similar issues and found in the claimant’s favour.

Although also be aware of this CH/2400/2011 concerning thei duty to read award notices.

     
stevenmcavoy
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yeah i think i have went down the social security approach than this one…..what happens when you type opinions while listening to vivaldi!

     
HB Anorak
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It’s a subtle distinction isn’t it?  Did not know but still should have known, how are these mutually compatible?  I think at the very least you have an “inadequate reasons” case here (which is what most successful UT appeals rely on): having accepted that the claimant genuinely did not realise she was being overpaid, the Tribunal should have done a lot more to explain why she nevertheless still should have known.  Her mental health should also have been covered in that fuller explanation.

As Victor says, there will be cases where you did not know but should have known: careless inattention to correspondence is a good example.  Or perhaps even uncharacteristic brain fade: you just clean forgot about something you really should have known.

What you would hope to get out of this is a remittal to FtT and a chance to submit further evidence laying it on thick about her state of mind at the time.

     
Jon (CHDCA)
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CH/2267/2015 (linked in your previous thread here) is just such a case, where it was accepted that the claimant did not realise there was an overpayment, the only issue was whether it was reasonable to expect her to have noticed.

I think it’s a useful case to highlight how unclear LA decision notices can be, when they don’t have a cover letter in plain English. The judge points out that the appeal papers presented only part of an 18 page calculation, from which the FTT were misled into saying the calculation was “clearly” set out.


edit to clarify

      [ Edited: 11 Jan 2017 at 05:34 pm by Jon (CHDCA) ]
chacha
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Cookie - 11 January 2017 04:08 PM

The tribunal’s decision states - ‘The tribunal totally accepts that Cl did not at any time actually realise that she was being overpaid’.  I don’t understand why they only partly found in her favour if this is the last comment they made within the decision.

Over payment caused by an official error when the claimant could not reasonably have been expected to know that they were being overpaid is not normally recoverable in law.  Therefore, I am wondering if the law has been applied correctly?? I may be talking total gibberish – as I said I do not have much experience with these types of cases….

Hmm, maybe this may be of use? 2015 UKUT 185 AAC aka CH 5286 2014

http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4495


“If in an “official error” case the sole basis for the claimant being reasonably expected to realise he or she is being overpaid is the decision notice, axiomatically that expectation cannot arise before he or she has received the notice and read it “

When did she actually receive the overpayment letter?

Your FtT have decided it’s an official error, if that’s the case then anything overpayment prior to the decision letter is not recoverable, at least according to this.

 

     
Cookie
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Hi All,

Wow thanks for all the comments! I will have a look into all the suggested case law etc.

I did also argue that the award notices were very confusing, The award letters actually state ‘Child Benefit for first child £13.20 (not counted)’ cl see this as meaning the child is not counted, hence she thought the calculations were correct!!

Thanks once again for all comments they have been a great help!

     
ClairemHodgson
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Cookie - 11 January 2017 06:04 PM

I did also argue that the award notices were very confusing, The award letters actually state ‘Child Benefit for first child £13.20 (not counted)’ cl see this as meaning the child is not counted, hence she thought the calculations were correct!!

i can see where she’s coming from with that…...normally if one says something is “not counted” one would expect that to mean “not counted”

if its a term of art that in fact/dwp speak means something else, they need to say so, so the lay person can understand it…

     
Mike Hughes
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Maybe someone else can help with this but I am wracking my brain to try and remember a case I had in the past few years where caselaw was quoted which established the principle that it what you ought reasonably to know could be considered. However, at the time I was able to counter this by arguing it was obiter and quoting caselaw which directly countered that. That in fact the only thing which was up for consideration was as the law describes.

It was a HB/CTB case so definitely in the right area. Can picture the client and her daughter. Just can’t remember the name. Anyone else recall the latter case? I’m sure I found it on here.

     
past caring
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Just a very small point here. Cookie has repeatedly said;

Cookie - 11 January 2017 04:08 PM

The tribunal’s decision states - ‘The tribunal totally accepts that Cl did not at any time actually realise that she was being overpaid’.

- i.e. this is what the decision says as opposed to what the statement of reasons says.

Am not saying there’s no error of law. However, if this is the decision as opposed to the SoR, then the tribunal might be able to iron out any error in its SoR.

What was the nature of the client’s work, out of interest?

 

     
Cookie
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Hi guys,

Thank you all so much for all your comments.  I am sorry I am only just replying now, but I only work one day a week in this position and the rest of the week in a completely different area of advice for a different organisation, which is also very busy!