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Unable to disclose change of circs, recoverable overpayment?
Claimant on DLA is hospitalised. From 28 days onwards is overpaid DLA and IS premium, which DWP say is recoverable. Claimant appeals on grounds that he was physically incapable of reporting anything, or of instructing anyone else to do so on his behalf. DWP submit that under R(IS) 9/06, the reasonableness of whether a claimant could disclose does not matter, and the claimant has admitted in their appeal that they knew they were required to disclose going into hospital. There is no mention in the submission of INF4s, or of any other explicit instructions to the claimant on what is a reportable change.
Is there likely to be any challenge to this overpayment being recoverable?
A slightly more focused question:
I’m confused by the implications of the case of B. Does the absolute duty to disclose apply where the claimant has said they were aware of a duty to disclose, but there is no evidence of clear and unambiguous instructions by the SoS of what to disclose?
Interesting discussion over here, which might be helpful :
Our case involves someone who was conscious, but physically unable to move or speak, so could not communicate through speech or writing. Should “reasonableness” come into it? The DWP have cited B, but I’m not sure whether our different facts mean B is still applicable.
Thanks. I have read the case, and the linked thread. DManville was trying to draw a distinction between a “B” case in which “a person’s inability to understand a fact of which they were aware was material to their benefit entitlement”, and a case where someone “is arguably unable to make the disclosure”. I think I need to read them again.
Careful distinctions need to be made between:
1. Whether the fact is one which the claimant is required to report; and
2. If so, whether the claimant has reported it in the required way.
I think if the claimant is not subject to the specific duty (reg 32(1A) C&P Regs) - ie that the fact they are alleged to have failed to disclose is not a fact which they were under specific instruction to disclose - then one must read the wording of the general duty carefully to consider whether the claimant has “failed” to comply with it:
Reg 32(1B) only requires a claimant to report this sort of general change “as soon as reasonably practicable”.
It must be arguable that a claimant who does not report such a change and is in a situation where it is not reasonably practicable for them to do so has not broken the legal duty.
On the point about the specific duty- then such an argument might work there as well. It will all depend what the instructions state the claimant has to do in terms of reporting.
You say the claimant admits he was aware he had to disclose going into hospital. So it is reasonable to ask why he didn’t do so before going into hospital. Was it because he was already unable to speak or write & therefore unable to communicate with anyone to ask them to disclose on his behalf?
If that was the case then, in my view, it would be utterly unreasonable - regardless of the nicety of the regulations and cases - for any authority to expect him to have made the disclosure until he recovered the ability to do so. There is a doctrine called Wednesbury unreasonableness meaning I think (subject to correction by my learned friends!) that something is so completely perverse that no reasonable minded person would countenance it. I would look to argue that this came within that doctrine, although I don’t know whether a Tribunal (as opposed to a Court) would consider itself to have to abide by it.
Just scratching around here as the decision in this case offends notions of natural justice.
I am trying to find some sort of weakness in the B decision. And, although B seems pretty secure, it must be remembered that B is distinguished. I’m not even sure that that matters as B seems clear cut on the face of it (although I know that Claire thinks it wrongly decided and has said so). B dealt with legislative distinctions “between those capable and those not capable of appreciating their obligation to report a change in circumstances”. In this case the claimant appreciates his obligation but is unable to act on it.
In B the court quotes from the tribunal of commissioners’ decision (at para 12) that “these requests were unambiguous. They imposed a duty on the claimant to report the fact that her children had been removed from the house. She knew that fact. She was able to communicate that fact to others. By not disclosing the fact to the Department, she was in breach of her obligation under regulation 32(1)”. I’m not entirely sure that this can be attacked but the commissioners in B have constructed a ‘chain’ beginning with obligation, ending with inaction and embracing an ability to communicate. It is the inability to communicate in this case that is a crucial difference between the two cases and breaks the chain of reasoning in B. The question is, does that breach matter and can an attractive argument be built on this basis. I’ll have to think some more on this but would appreciate some help.
Just scratching around here as the decision in this case offends notions of natural justice.
(although I know that Claire thinks it wrongly decided and has said so).
it’s more that i think B was before the Mental Capacity Act, and IMHO any tribunal now faced with a case where the person lacked capacity has to take that into account. Social Security law as it stands doesn’t, in this context, take any note of a persons capacity which it should.
and to add, whilst the MCA is of course about someone’s mental capacity which is the nub of B, where physical incapacity is in question it surely cannot be right that someone should disclose that which they are physically unable to disclose.
Section 49A(1)(d) of the Disability Discrimination Act 1995 (inserted by amemdment in 2005) is in the followimg terms.
(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons;
The Act was repealed in 2010 by the Equality Act and replaced with the following.
149Public sector equality duty
(1)A public authority must, in the exercise of its functions, have due regard to the need to—
(a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2)A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3)Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a)remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b)take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c)encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4)The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.
(5)Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a)tackle prejudice, and
(b)promote understanding.
(6)Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7)The relevant protected characteristics are—
• age;
• disability;
• gender reassignment;
• pregnancy and maternity;
• race;
• religion or belief;
• sex;
• sexual orientation.
(8)A reference to conduct that is prohibited by or under this Act includes a reference to—
(a)a breach of an equality clause or rule;
(b)a breach of a non-discrimination rule.
(9)Schedule 18 (exceptions) has effect.
This section, particularly subs (1)(b), (3)(a), (3)(b) and (6), in my view, now casts doubt on the application of the full rigour of reg 32(1A) of the Claims and Payments Regs.
i think you could argue that there was no ‘failure’ to disclose in this case - ‘failure’ to do something implies that there was a choice in the matter.
in this case, the claimant didn’t ‘fail’ to notify, he just didn’t notify because he couldn’t. it’s analagous to there being no failure to disclose something you don’t know - you can’t ‘fail’ to disclose it since you’re unable to disclose it.
I think there is a danger of tying ourselves in knots on this. The question is simply to consider the nature of the duty to disclose and ask whether it has been complied with. “Failure” in this context has no special meaning other than breach of the duty.
1. “Failure to disclose” = breach of a legal duty to disclose (that is what the Tribunal of Commissioners decided in B before it went to the CA and remains good law- see para 46(4) of the Tribunal of Comms decision).
2. The potential source of the duty in a case where the claimant has not been told to report a specific fact is Reg 32(1B) (see para 46(2) of the Tribunal of Comms).
3. The content of the duty is to report as soon as reasonably practicable (that is clear from reading Reg 32(1B).
4. So a person who has reported as soon as reasonably practicable has complied with the duty.
What counts as “as soon as reasonably practicable” must be a question of fact in each case.
oh alright then! :)
You say the claimant admits he was aware he had to disclose going into hospital. So it is reasonable to ask why he didn’t do so before going into hospital. Was it because he was already unable to speak or write & therefore unable to communicate with anyone to ask them to disclose on his behalf?
The medical emergency was fairly severe and unexpected, but as always, the devil will be in the detail.
Anyway, I think I now have some sort of argument to make at tribunal, I will post back here with the outcome. Thanks to all the contributors so far, it’s been very helpful as always.
On receipt of my submission, decision was reconsidered before the hearing, so didn’t need to test my arguments in tribunal. IS write that they do hold evidence of the issue of “forms of IMF 4” during the claim (in which case, I’m not sure why they didn’t say so in the bundle..), but “Whilst legislation may provide for recoverability in a case of failure to disclose whether or not that disclosure was reasonably to be expected I intend to follow the lead of the DLA decision makers who were happy to accept that the overpayment was not recoverable.”
Thanks again.