Overpayment of Enhanced Disability Premium

I think the fact that the gov.uk pages say, as you point out, ‘You don’t have to claim disability premium, it’s automatically added to your Income Support if you’re eligible’ implies that you also don’t have to tell them to take it off - that should happen automatically too. If you don’t have to claim you don’t have to unclaim as it were!

You can only fail to disclose something they don’t already know. The processing offices for income support have information on their computers about DLA so they do already know it. And in any event I would say the information on that page abdicates any duty to disclose.

The DWP guidance is useful - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/337396/dmgch09.pdf - para 09234 onwards - para 09245 is useful on advice from DWP modifying the duty to disclose which you could argue the website advice does.

I guess the only hurdle is what things were like back in 2008 - I’m trying to remember back that far! - but I think the computers were that advanced then. The burden of proof is on the DWP to show otherwise.

Daphne - 31 October 2014 10:30 AM

I guess the only hurdle is what things were like back in 2008 - I’m trying to remember back that far! - but I think the computers were that advanced then. The burden of proof is on the DWP to show otherwise.

I was a benefit processor up to 2005 and they had access to that information then.

Daphne - 31 October 2014 10:30 AM

I think the fact that the gov.uk pages say, as you point out, ‘You don’t have to claim disability premium, it’s automatically added to your Income Support if you’re eligible’ implies that you also don’t have to tell them to take it off - that should happen automatically too. If you don’t have to claim you don’t have to unclaim as it were!

You can only fail to disclose something they don’t already know. The processing offices for income support have information on their computers about DLA so they do already know it. And in any event I would say the information on that page abdicates any duty to disclose.

The DWP guidance is useful - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/337396/dmgch09.pdf - para 09234 onwards - para 09245 is useful on advice from DWP modifying the duty to disclose which you could argue the website advice does.

I guess the only hurdle is what things were like back in 2008 - I’m trying to remember back that far! - but I think the computers were that advanced then. The burden of proof is on the DWP to show otherwise.

Daphne, I have a response to a recent FoI request which details the automatic processes for internal notifications between DWP departments. I’m not clever enough to put an attachment on rightsnet ( I shouldn’t be allowed to use a computer without adult supervison, especially on a Friday) but if you email me at .(JavaScript must be enabled to view this email address) I will send it to you and you can post it.

Here is Pete’s FOI request -

Thank you guys - very kind and extremely useful
Mark

Daphne - 31 October 2014 10:30 AM

You can only fail to disclose something they don’t already know.

 

How does this principle fit with Tax Credits? If your child’s DLA stops and you don’t tell Tax Credits until your renewal date can they create an overpayment for that year or can you argue that there cannot be an overpayment as you did not fail to disclose the change in circumstance?

In Hinchy, at para 32, Lord Hoffman said, “the claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the department. In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another”.

However, for recovery under section 71 of the Admin Act the failure to disclose/misrepresentation must be the cause of the overpayment.  I don’t agree that the duty is modified by what is on a website, addressed to no one in particular, that someone might or might not access.  It might be worth arguing but if I was a decision maker I’d argue that the duty can only be modified by something notified to the claimant directly (whether it reaches him or not is another matter).  But, I’d be quite happy to be proved wrong on that.

The Department need to be asked three questions.  First what (if any) are the administrative arrangements between the DBU and the local office for the DBU to notify the local office when DLA stops or reduces?  Second, did the DBU use those arrangements in this case?  Third, if the answer to question 2 is yes then why did the Income Support continue in payment?

If the local office had the requisite information but failed to act on it then the overpayment would be caused by official error, in my view, and thus not recoverable.

nevip - 03 November 2014 11:55 AM

In Hinchy, at para 32, Lord Hoffman said, “the claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the department. In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another”.

However, for recovery under section 71 of the Admin Act the failure to disclose/misrepresentation must be the cause of the overpayment.  I don’t agree that the duty is modified by what is on a website, addressed to no one in particular, that someone might or might not access.  It might be worth arguing but if I was a decision maker I’d argue that the duty can only be modified by something notified to the claimant directly (whether it reaches him or not is another matter).  But, I’d be quite happy to be proved wrong on that.

The Department need to be asked three questions.  First what (if any) are the administrative arrangements between the DBU and the local office for the DBU to notify the local office when DLA stops or reduces?  Second, did the DBU use those arrangements in this case?  Third, if the answer to question 2 is yes then why did the Income Support continue in payment?

If the local office had the requisite information but failed to act on it then the overpayment would be caused by official error, in my view, and thus not recoverable.

I agree with nevip, the purpose of the FoI request was to not to show that there was an infallible link (which would modify the duty in Hinchy et al) but to question the chain of causation between the claimant’s failure to disclose and the overpayment. I feel that the FoI response goes some way to answering the first question and seems to be saying that DLA automatically notify other offices paying benefits and if this automatic process is in place then the chain of causation between the overpayment and the failure to disclose may be broken. I think that if the informtion had been automatically sent to IS but not acted on there is an analogy with the situation where a claimant rings to say their DLA has stopped but no one does anything about it

nevip - 03 November 2014 11:55 AM

[snip]

 

I’m just trying to get my head round this. Are there two separate arguments - that the overpayment is not recoverable because the claimant cannot have failed to disclose a fact that the DWP were already aware of; and alternatively that the overpayment is not recoverable because it was caused by an official error? Or are these arguments one and the same?

I ask for two reasons. Firstly I think that the official error argument could potentially be vulnerable to the argument that whilst JCP should have acted on the notification they received from DLA (for example), the claimant materially contributed to the circumstances that led to them being overpaid by failing to meet the standards of disclosure that currently seem to be fairly settled in case-law.

The second reason is that one of my clients has a very old and fairly large overpayment that arose in these circumstances and which they have been paying back. In the light of the FOI response, an any-time revision request on the grounds that the O/P arose as a result of an official error could be accepted despite being well outside the normal appeal time-limits.

Essentially they’re one and the same.  It all comes down to causation.  Effective disclosure kills the matter in the claimant’s favour.  A failure to disclose incorporates a breach of duty by the claimant.  So it’s possible to have more than one cause for the overpayment.  That’s why each case will turn on its own facts.  The question is, what does the issuing office know?  The more remote the relevant facts are, both geographically and in detail, the more the door is left open to rule against the claimant.  But, where the relevant facts are plain and at the fingertips of staff in the issuing office then the more likely that the cause of the overpayment is official error and not caused by the claimant.

SamW - 03 November 2014 05:38 PM

nevip - 03 November 2014 11:55 AM

[snip]

 

I’m just trying to get my head round this. Are there two separate arguments - that the overpayment is not recoverable because the claimant cannot have failed to disclose a fact that the DWP were already aware of; and alternatively that the overpayment is not recoverable because it was caused by an official error? Or are these arguments one and the same?

I ask for two reasons. Firstly I think that the official error argument could potentially be vulnerable to the argument that whilst JCP should have acted on the notification they received from DLA (for example), the claimant materially contributed to the circumstances that led to them being overpaid by failing to meet the standards of disclosure that currently seem to be fairly settled in case-law.

The second reason is that one of my clients has a very old and fairly large overpayment that arose in these circumstances and which they have been paying back. In the light of the FOI response, an any-time revision request on the grounds that the O/P arose as a result of an official error could be accepted despite being well outside the normal appeal time-limits.

Like nevip I feel that this is all about the chain of causation between the claimat’s failure to disclose and the overpayment. If the information about the end of the DLA award was a fact already known to ESA/IS or whoever then it is arguable that there is no direct causal link between the failure to disclose and the overpayment.

In CIS/159/1990 it was held that;

“4. As section 53 of the 1986 Act makes explicitly plain it
is only where payment is made in consequence of a
misrepresentation or failure to disclose that it is
recoverable. In R(SB)15/87 a Tribunal of Commissioners
considered, among other matters to do with failure to
disclose, the position where the material fact not disclosed
by the claimant is known to the local office because they have
been told by somebody else. They said -

“Having regard to the manner in which information
provided to the Department, is, or should be, dealt with,
and to the general practice of the Department, ... it
would follow that there could be circumstances in which
the Secretary of State would be in possession of certain
knowledge - even though not supplied to him by or with
the knowledge of the claimant - which would make it
impossible to say that he thereafter incurred expenditure
in consequence of the claimant’s failure to disclose.
Indeed there must be many cases in which, for this
reason, wrong expenditure is not incurred despite the
claimant’s failure to disclose. Again that will be a
question of fact in each case ...”.

Now this case seems to me to be the very sort of case which
the Tribunal of Commissioners might have had in mind. How can
the local office complain that the claimant did not tell them
something of which they had officially been notified? The
payments in question would not have been made had they acted
on the information they already had and which had been
supplied to them so that they could adjust the amount of
benefit. How can one be sure they would any the more have
acted on information given to them by the claimant? In my view
in this case the overpayment was not in consequence of any
failure to disclose on the part of the claimant.”

If ESA/IS or whoever failed to act on that information then that could be seen as an official error in the same way that a failure to take the appropriate action following a telephone call from the claimant to say that the DLA had ended would be. In both cases the relevant information was known to the ‘office dealing with the claim’ but that office failed to act properly on that information.

More recently is CPC 962/2012 - at para 16 -

“However, what is an effective cause is to be determined as a matter of common sense.  Breaking the chain of causation does not mean that a situation must be arrived at where the original non-disclosure or misrepresentation was not in any way responsible for the overpayment.  Even when the relevant office of the DWP has all the relevant information but fails to act promptly on it, and even where that information has been supplied late by the claimant, as a matter of strict logic the original breach of duty by the claimant remains a cause of the overpayment because had the duty been performed the overpayment would never have been made.  Nevertheless, at least by that stage it is generally accepted that the failure of the DWP to act with reasonable speed breaks the chain of causation.  What in my judgment is really meant by breaking the chain of causation applying the commonsense required the authorities referred to by me in GJ v Secretary of State [2010] UKUT 107 (AAC) is that a situation has been reached where intervening factors mean that it would not be right as a matter of common sense, and in all the circumstances, to hold the claimant responsible for subsequent overpayments.”

Obviously Hinchy being an old House of Lords decision it will be followed until the Supreme Court reaches a different view in another case, but what a shame because it really is years out of date.  In this era of interlinked systems, automatic data-matching, the “tell-us-once” principle when you register a death, it ought to be perfectly reasonable for a claimant to assume that one part of the DWP knows what another part is doing when the alteration of benefit A has a direct effect on benefit B.

Unfortunately it seems the OP’s case is an exact match for Hinchy on the facts so unless it goes all the way to the Supreme Court there seems to be little hope, unless it is possible to identify a sub-period in which the chain of causation was broken.  But I think the effect of Hinchy is that to begin with at least this kind of overpayment will always be recoverable because the immediate cause is the fact that the claimant did not tell one part of DWP about the actions of another part.  The chain would only break if the local jobcentre subsequently became aware of the fact by some means and failed to act on it.

It also appears that LA’s are held to a somewhat higher standard.  This from the Ombudsman.

(Report 98/A/4300)
“It is no excuse that council tax is dealt
with in one department and benefit in
another. The council is a corporate body
and the public should not be made to
suffer for failings in communication
between departments.”