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Underlying entitlement
In a previous life I was a HB decision maker, and we were trained to always consider underlying entitlement in cases of overpayment. I’ve just spoken to HB investigations, who have told me that this is not the case when a fraud investigation is involved. I was told that the person being investigated is written to and given 28 days to provide evidence. If they do not do so they cannot provide it at a later date and have the overpayment looked at again. I have asked to be pointed at the regs for this, but suspect this won’t happen.
In the case in question my client was self-employed and paid in cash. She fell out with her employers and someone has made an allegation that she was paid mega-bucks. Investigations took this as gospel and Hb was recalculated to give no entitlement and a large overpayment. She felt that she could disprove this allegation, and I told her if so O/P would be looked at again. Was I wrong?
There is no difference in UE calculations for Rfaud overpayments and any other.
According to the DWP overpayments guide, where evidence is requested the claimant has one month to supply it, the LA then make the decision and the claimant has one month to appeal. If the claimant then provide the evidence at a later date then they are out of time unless they claim backdaing and appeal.
Many LAs (Including my own) view the guidance as being incorrect and act more flexibly, but it looks like the LA you are dealing with is following the DWP guidance.
Time limits for calculating underlying entitlement
3.54 Request the information you need to calculate underlying entitlement in accordance with the provisions of HB Reg 86 & (SPC) 67 and CTB Reg 72 & (SPC) 57. These regulations state that the claimant is given one month to provide any requested information or evidence, ‘or such longer period as the relevant authority may consider reasonable’. (Any references to the one-month time limit should include this possible extension period.) This guidance is in accordance with case law. In Commissioner’s decision CH/4943/2001, Commissioner Jacobs states that • regulation 104 ((SPC) 85) is mandatory, and • the LA should use its powers under regulation 86 ((SPC) 67) (previously under regulation 73) to seek information from the claimant in order to calculate the overpayment correctly
3.55 If the claimant provides the details within the one-month timescale• recalculate the overpayment, normally reducing it (applying HB Reg 104 ((SPC) 85) or CTB Reg 89 ((SPC) 74), and • issue the claimant with their decision notice, giving them the appropriate appeal rights
3.56 If, however the claimant does not provide the details within one month• issue the decision notice for the gross overpayment amount• give the claimant the appropriate appeal rights The claimant has one month in which to appeal. This can be extended up to a maximum of 13 months, if there are reasons for the delay. As with any appeal, if the claimant provides new relevant information, the LA or Tribunal can take this into account when making their decision.
3.57 Calculating underlying entitlement is a one off calculation. Once a request has been made and the details have been supplied or not supplied, the correct and final overpayment amount should be calculated. If information comes to light after this has been completed and outside the time limits, the LA would not need to revisit the overpayment calculation. However, the claimant may ask for a backdated decision to be made, which should be considered following the normal backdating rules. If the claimant provides underlying entitlement information outside of the original one month time limit, then only if the claimant appeals against the overpayment decision, should that information be considered or taken into account. This is consistent with Commissioner’s decision CH/360/06, which dealt comprehensively with the issue of time limits
Thank you so much for your fast and comprehensive reply. Really looking forward now to my forthcoming meeting with the officer investigating this case who told me loudly and confidently ‘we don’t do underlying entitlements in Fraud’.
I fully endorse Jeff’‘s reply. Further, LAs have recently been firmly reminded by the DWP that ULE must be calculated irrespective of whether or not there is an allegation of fraud. I am no great fan of DWP guidance or circulars, but HB/CTB G5/2011 says, at para 14, “Even if the customer has committed fraud, underlying entitlement must be considered.”
G5: http://www.dwp.gov.uk/docs/g5-2011.pdf
In this case, the circular properly reflects the law.
On the issue of “28 days”, as Jeff says, that is simply wrong. The legal MINIMUM is one calendar monthand there is no special treatment for alleged fraud cases. Take a look at CJSA/0068/2009 where the DWP gave a time frame that was unlawful - the same principle applies to HB/CTB.
Further, there is no legal basis for simply ending awards of HB/CTB just because an allegation of fraud has been made. Entitlement depends on the substantive FACTS, not allegations. It is also unlawful to “end” HB/CTB BEFORE considering ULE - ULE is an integral part of the overpayment process and, if it hasn’t been undertaken, I would be confident of arguing that the decision made is rendered to be of no effect on the grounds it was made in direct contradiction of benefits legislation (especially given the time limit fiasco).
I would ask him how he can, with a clear conscious, investigate those alleged to be claimant fraudulently when he is himself either ignorant of the rules or choosing to disapply them. Two things with which he will hit claimants very hard. Some call it confrontational. I call it fair…
Spot on Tony. It is astonishing that the vast majority of so-called fraud investigators know so little about the entitlement conditions of the very benefits they are charged with investigating (at least in my experience). If you don’t know the relevant legislation (and wider law), how on earth can you (professionally) determine what someone’s entitlement is?
Thanks for all your input guys. I know someone who was called in for an IUC because they hadn’t spent their HB on rent. I advised unofficially (friend of a friend)and gave them a copy of caselaw, but the silly girl was completely intimidated, didn’t say a word and accepted a caution!