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‘Could reasonably have known s/he was being overpaid’

 

 

Cookie
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Hi,

I have a case where a Cl advised the LA twice of a change in her circumstances.  Evidence was provided via a ‘change of circumstances form’ and then again a month later by providing evidence of a new tax award letter showing that child care costs are no longer being paid. 

The LA has admitted that when revising benefit entitlement they failed to remove the child care costs on both occasions. Child care costs continued to be included in the HB claim for just over a year.  Although they admit official error they are claiming the OP is recoverable because the claimant could reasonably have known she was being overpaid, as the child care costs were detailed on numerous notification letters issued after the reported change.

Cl states she did not receive any notification letters, however, because she cannot provide evidence that there has been a problem with her post this is not being accepted.

Is there any case law relevant to this case? I have searched but can’t find anything.  I am afraid I am a little rusty. 
Any help would be greatly appreciated…

     
ClairemHodgson
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have they produced the letters they allege they sent?

     
Cookie
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Hi Claire,

Yes, the letters are within the bundle. Cl did have some problems with her post and it was temporarily being sent to her mother’s address, however, Cl asked for post to be sent back to her home address approx a month before the said letters were sent.

It may be possible to argue that she didn’t receive the post and maybe obtain evidence?

     
Mike Hughes
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My starting point would be to ask for more than the letters. I’d want a print off of the print screens showing that the button was in fact pressed to send those letters.

My next thing would be to establish whether the claimant ought reasonably to have known they were being overpaid. Is this the first time they made this type of disclosure; did they understand what the impact was and so on? Can’t be assumed that just because she made a disclosure that she would have understood what would change.

     
hbinfopeter
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There is very helpful case law on the point of long and confusing letters ....just released. A much better argument than saying the letters were not received “in the alternative” imo. CH/2267/2015 by Judge Levenson sets a higher bar where the local authority accepts an official error has occurred especially where there is a mass of confusing and complex decision letters.

      [ Edited: 31 May 2016 at 08:01 pm by hbinfopeter ]
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CH/2267/2015 not yet on the UT website.

     
hbinfopeter
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Hope this helps.

     

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ClairemHodgson
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I like this last para:

16. The claimant here was faced with repeated errors (at all stages) made by the respondent local authority and by a series of extremely lengthy badly designed complicated and confusing forms. For these and for reasons that I have indicated above, including reliance on advice by a series of advice agencies, I am satisfied that the claimant has demonstrated that at the time of receipt of payment or of any notice relating to a payment, this particular claimant in these particular circumstances could not reasonably have been expected to realise that the local authority had (repeatedly) made so many errors in making the award(s).

 

     
Cookie
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Wow, thank you for all your responses, this is a great help!  I will look into all your suggestions. 
Thank you all so much! smile

     
Cookie
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Mike Hughes - 31 May 2016 12:34 PM

My starting point would be to ask for more than the letters. I’d want a print off of the print screens showing that the button was in fact pressed to send those letters.

My next thing would be to establish whether the claimant ought reasonably to have known they were being overpaid. Is this the first time they made this type of disclosure; did they understand what the impact was and so on? Can’t be assumed that just because she made a disclosure that she would have understood what would change.

Hi Mike,
I wonder if you can help.
I am looking through the bundle and checking to see if the letters were actually sent to Cl.  There are copies of screen shots from [live] Display Diary which just shows ‘ATLAS Batch’ with a Reference next to it.  I can see the ‘send button’ date time etc.  Does this mean the letters were sent out? Do you know if ATLAS Batch **** means a letters are automatically sent out?
Many thanks

 

     
HB Anorak
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If it’s a Havering case, they use the Capita system called Academy.  It has a correspondence screen listing all the letters that it has generated and an indicator that shows whether each letter is editable.  Editable means not yet sent.  If they produce a screen shot showing the letters in question are no longer editable, plus some commentary explaining how to interpret that screen, the Tribunal would be entitled to presume that the letters were sent and the onus would rest with the claimant to show that they were not.

“ATLAS batch” I think means the decision was generated without any human intervention - notification from DWP was automatically loaded into the system.  Not all authorities do this - some prefer some human scrutiny and data cleansing - but I think the market-leading systems (of which Academy is certainly one) offer automation to Councils who want it.  But as I understand it batch decision letters should still appear in the correspondence history.  That history can also be backed up by the “rent assessments” screen which records all decisions ever made on the case.

I would ask the Council for screen shots of both the correspondence and rent assessment screens showing each event that led to one of the disputed letters being produced.

     
Mike Hughes
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As has just been demonstrated, HBAnorak has far superior knowledge to me on that front. I could have only responded in relation to my own LA.

     
Cookie
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HB Anorak - 05 June 2016 12:45 PM

If it’s a Havering case, they use the Capita system called Academy.  It has a correspondence screen listing all the letters that it has generated and an indicator that shows whether each letter is editable.  Editable means not yet sent.  If they produce a screen shot showing the letters in question are no longer editable, plus some commentary explaining how to interpret that screen, the Tribunal would be entitled to presume that the letters were sent and the onus would rest with the claimant to show that they were not.

“ATLAS batch” I think means the decision was generated without any human intervention - notification from DWP was automatically loaded into the system.  Not all authorities do this - some prefer some human scrutiny and data cleansing - but I think the market-leading systems (of which Academy is certainly one) offer automation to Councils who want it.  But as I understand it batch decision letters should still appear in the correspondence history.  That history can also be backed up by the “rent assessments” screen which records all decisions ever made on the case.

I would ask the Council for screen shots of both the correspondence and rent assessment screens showing each event that led to one of the disputed letters being produced.

Hi HB Anorak,

Thank you for your input, it’s very much appreciated!

The case is a Harlow case. I think you are right, the decisions may have been sent out automatically.  I am not sure I have enough time to request the information you suggest as the hearing date is due very soon. From what I can see from the papers they failed to remove CCC when first notified in Dec 2014, then again in Jan 2015.  Then later two ATLAS Awards were generated (I think this is the correct terminology) one on 05/15 and again on 29/05 and they still failed to remove CCC. 

One of the letters generated to the Cl id 32 pages long!!! On all of the notifications the first line either states ‘Your benefit has been reassessed because there has been a change to your income, but there has not been a change to the amount of benefit you are entitled to’ and ‘Your benefit has been reassessed because we have been advised that there has been a change to your tax credits but this has not changed the amount of benefit you are entitled to’.
Surely any layperson looking at this information after advising the office of a change of circumstance would think ‘ah that’s good’ and not would bother to look through the other 32 pages of complicated calculations!?

Do you think this is a strong enough argument, whilst using CH/2267/2015?

 

     
Cookie
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Mike Hughes - 06 June 2016 09:59 AM

As has just been demonstrated, HBAnorak has far superior knowledge to me on that front. I could have only responded in relation to my own LA.

Thanks Mike :)

     
HB Anorak
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Cookie: yes, that is the approach to take.  CH/2267/2015 is useful in that it’s recent and fresh in the memory but to be honest there are a hundred others just like it.  The UT has always been careful to say that what really matters is what this claimant could have been expected to realise from his/her own letter: it is well-established that the Council cannot rely on information being buried in there somewhere to say “you should have known” in every case.

     
Cookie
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HB Anorak - 08 June 2016 11:52 AM

Cookie: yes, that is the approach to take.  CH/2267/2015 is useful in that it’s recent and fresh in the memory but to be honest there are a hundred others just like it.  The UT has always been careful to say that what really matters is what this claimant could have been expected to realise from his/her own letter: it is well-established that the Council cannot rely on information being buried in there somewhere to say “you should have known” in every case.

That’s great!  Thanks again :)