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recoverability. 

benefitsadviser
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Sunderland West Advice Project

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A client of mine was in receipt of maternity allowance, but unfortunately her newborn child was ill

She got DLA quickly, and this naturally led to higher child tax credits

Client reported this to HB and they recalculated her award, and mistakenly removed her maternity benefit on the income sheet.

This has led to an over payment, as she had more coming in than the council realised.

She never reported the maternity allowance stopping, as it was still in payment. The MA was removed by the council by mistake.

I feel this is official error, and non recoverable.
my MR came back -ve , and the councils position is that she should have noticed this at the time, and therefore its her fault ergo recoverable.

With regards to responsibilities : Do i have a case here? She never failed disclose anything, and there was no misrepresentation. The council made the mistake and expect her to pay for it.

Thanks

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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They are acknowledging that it was their error but they are saying it is recoverable because she could reasonably have been expected to realise she was being overpaid.  This is what HB Reg 100 says: an overpayment is not recoverable if (i) it was caused by official error (conceded) and (ii) the claimant could not have been expected to realise (disputed). They will say she received a decision notice showing what income was being taken into account and that it should have been obvious there was an item missing.  Whether that is a fair argument will depend on how good the decision notice was - some systems are better than others.

Paul_Treloar_AgeUK
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This CH/617/2012 might be worth a look at? I’m sure there’s a more recent UT decision but can’t find it atm.

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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They’ll not want it going to a tribunal as they’ll look somewhat unsympathetic.

There are two angles on this sort of thing. One is indeed to take a good look at the notice and the other (and they’re not mutually exclusive) is to argue that the claimant could not have been expected to realise she was being overpaid.

This is a question of fact and it’s possible to take into account all relevant circumstances pertaining at that time. So, she has a new born child sufficiently ill that she claims DLA. Did she do that herself, which would suggest she was doing okay and on top of correspondence, or, did she need assistance with that. Was the stress of both having a new child and a poorly one impacting on her own health? Was she coping with the household in terms of bills, correspondence, appointments and so on. What were the circumstances of her partner? Had she ever claimed these benefits before? Did she have any knowledge of how things were supposed to work? At what point did she seek advice? What brought to her attention that she was being overpaid? What did she do at that point?

And so on 😊

Sally63
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Generalist Adviser, Southwark Citizens Advice Bureau

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HB Anorak - 28 April 2017 09:13 AM

They are acknowledging that it was their error but they are saying it is recoverable because she could reasonably have been expected to realise she was being overpaid.  This is what HB Reg 100 says: an overpayment is not recoverable if (i) it was caused by official error (conceded) and (ii) the claimant could not have been expected to realise (disputed). They will say she received a decision notice showing what income was being taken into account and that it should have been obvious there was an item missing.  Whether that is a fair argument will depend on how good the decision notice was - some systems are better than others.

our council dropped recovery on this point. It was informed that childcare costs had stopped (the children had gone to school) but continued to include them. However they were included in such an incomprehensible way—the word childcare was never mentioned on the decision notice—one parent was illiterate and the other Nigerian with a better than average Nigerian command of written English but still…....—that we made a case they could not have been expected to know