Challenging recovery of a severe disability premium overpayment

Has anyone had any success in challenging recovery of an overpayment of a Severe Disability Premium. Client has diagnosis of schizophrenia and lost entitlement when he moved in with mum but of course did not realise he had to notify the DWP - he probably did not realise the terms of the entitlement in the first place. He has said to this care co-ordinator that when he moved in with his mum, someone claimed Carers Allowance and therefore he assumed that any amendments to his claim would happen automatically but pretty sure that that would not be a defence
Any suggestions very welcome - its quite a substantial overpayment

Hi Jacky

I think it might be a struggle to challenge this. His award letters would have advised him to notify changes of circumstances such as changes of household and where there is a clear instruction there is an absolute duty to disclose (see new CPAG book page 1214).

However, it might be worth investigating if he did disclose to some extent - for instance - did he notify change of address and, if so, what did he say? How long ago was the carer’s allowance claim made - do you know if it was since the change which meant he would have had to sign to say he understood he would lose sdp. But I think it is going to be very difficult to put a case together - a very recent decision - [2016] UKUT 162 (AAC) - found that a claimant cannot assume automatic decision making will apply to changes in circumstances eg the award of CA cannot automatically stop your client’s sdp on his IS.

But maybe someone else will have a more positive slant on it??

It is a bug bear of mine that claimants have such a massive burden when their circs change. I know completing an ESA3 every time they caught a cold was onerous but we’re now in a world where it is incumbent on claimants to know the very fine points of which circumstances are relevant and which aren’t. There must be a line somewhere where it becomes incumbent on JCP to start asking questions.

If he told JCP “I’ve moved in with my mum” that should be enough and I would argue that until I’m blue in the face.

This situation can be distinguished from that decision; it doesn’t rely on automatic notification between very different departments; it relies on JCP alone asking the right questions. I’d appeal it; I’d do a Subject Access Request for copies of the calls where he notified his change of address (and all since) and if he said “I’m living with my mum” or similar I’d argue it’s game over and the o/p isn’t recoverable.

I agree completely Dan - if he said I’m moving in with my mum then he has clearly notified - I read the original post as that he hadn’t said that which is why I was querying what, if anything, he did say when he changed address in the hope that something might be able to be inferred. Getting a copy of the phone calls is a good idea.

Daphne - 10 May 2016 12:02 PM

Getting a copy of the phone calls is a good idea.

I’m on first name terms with our local data protection officer…

I’ll illustrate my frustration with a common problem I see with DLA/PIP. A person is hospitalised for a while; their tenancy breaks down and when they’re discharged they move into a new tenancy. The change of address is notified immediately but 6 months later when I spot their DLA hasn’t been reinstated I get told “you didn’t tell us xyz had come out of hospital.”

It drives me to distraction!

Edit. I’ve just been reminded of another vexatious element to this. I recently helped someone claim SDP but have run into problems because CIS shows old tenants still resident in the property. They will check their data when extra money is in question, why not when someone has a change of circs?

R(IB) 4/07(Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495)
Reports any instruction on disclosure must be ‘clear and unambigious’. This may be useful if you can tie it into other aspects of the case to get around the absolute duty to disclose if disclosure did not ocur correctly.

[2007] EWCA Civ 495