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Appeal to upper tribunal?
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. :)
Should add that was only one plank of the argument!
Thanks Mike - I did try to argue the point that the wording of the child premium especially is extremely confusing in that it has next it (not counted), it appears from the decision though that this was not considered. I will find out once I receive the SWR ‘s - I’ll keep you updated.
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.
Thanks for these cases Paul i will have a look at them.
Just a very small point here. Cookie has repeatedly said;
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?
Hi,
I am requesting SoR today - i think you’re right, the tribunal may re-read and correct any error. However, like Mike states above i feel there may still be a case for ‘inadequate reasons’ . The Cl is a learning support assistant, why do you ask this ?
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.
Interesting i’ll have a read - thank you.