Hi folks,

Assisting client with an overpayment appeal based on alleged failure to disclose.

I'm looking at the issue of whether SoS has made it clear what client has to disclose (bearing in mind Reg 32(1) SS(C&P) Regs: claimant must furnish information when requested by the SoS.

Are there any CDs that deal with situations where a claimant is given clear written information by one benefit office, but is also given ambiguous/conflicting written information by another benefit office?

Have seen CG/1195/2002 and CIB/1985/2004 which concerned leaflets not being clear enough. However, haven't seen anything dealing with conflicting information - anything i've missed?

thanks.

Hi Jo

Do not know the answer to your question at this point of time but there is an argument I have used recently. The argument went unanswered because we won the appeal on other grounds but I intend to keep on using it. Hope this is of some use.

Regards
Paul

Second, the burden of proof here is on the Department. Its evidence has to meet a high standard. It is not enough for the department to produce a sample letter. If the Department alleges that Ms…. was sent a notification detailing specific information which she was under a duty to disclose then the Department should produce evidence that the notification was issued in this case and not point to its general practice for evidence that it did in fact send the notification. In other words it is incumbent on the Department to produce a copy of the notification that was actually sent to Ms…. If the Department did not keep a copy then that should rebound on it and not Ms….

In CDLA/1823/2004 the commissioner states, at Para 9, that in “the present case, there is no evidence in the papers before me as to what, if any, instructions were given to the claimant. Not only is such information required when considering whether an overpayment is recoverable under section 71(1) of the 1992 Act, it is also required for the purpose of determining whether a supersession decision is to be made retrospective under regulation 7(2)(c)(ii) of the 1999 regulations. And in setting the tribunal’s decision aside the commissioner directs the Secretary of State “to provide the tribunal with copies of the instructions given the claimant as to his duty to report facts to those responsible for administering disability living allowance”.

We submit that the construction should be that the Secretary of State should produce copies of instructions given to that particular claimant and not claimants in general. Otherwise the commissioner would have used the plural instead of the singular. This is because it is not sufficient for the Department to say that this is what we usually do or what we should do. The Department has to show that this is actually what was done in this particular case.

paul,

yes i think this is a strong argument, and one i will be using in my client's case since there is no evidence of the leaflet actually being sent to client, only a statement that it was sent. Commissioner Williams in CG/1195/2002 also comments on this quite usefully i think (para 10).

I missed CG/1195/02 so I will give it a look. Let us know how you get on and good luck.

Hi

I have a similiar case where I have used CDLA/1823/2004 and CG/1195/2002. Do you know where I can get a copy of CG/1195/2002

Cheers

Mr arguments have been seriously undermined since CIS/3486/2007 was handed down . That and the one you are looking for can both be found on the commissioners website.

3486 @ http://www.osscsc.gov.uk/aspx/view.aspx?id=2413
1195 @ http://www.osscsc.gov.uk/aspx/view.aspx?id=917

Thanks for pointing me in the right direction. I will bear that one in mind.

My clients appeal was allowed on the grounds that the sos had failed to discharge the burden of proof that there was a recoverable overpayment. Indeed the tribunal agreed that a sample letter was not suffice. The Tribunal also noted that the Sos had failed to provide any documentation which was sent to the client during the tenure of her entitlement. I had many other arguments but these were not considered as it was accepted by the initial argument. However the Sos appealed to the commissioner and the commissioner has directed an oral hearing. The Sos made many errors in their iniial submission and provided a sample letter of the alleged notification. They have used CSIS/1253/00 in their submission the commisioner to back up the sample letter stating it is not mandatory in an overpayment decision that the decision under review in the linked decision is produced. They also refer to CG/2932/2007 stating that,"in my judgement it is such standard procedure for the information leaflets to be sent routinely on making an award or updating ..... The chances of such information being omitted throughout the period of the claimants award.......are remote and I find as fact that on the balance of probabilities the claimant did receive the information leaflets"


The Sos is stating the super session decision is not under appeal. He submits that it is a valid ss removing entitlement to the child increase from..... and that s71 (5) SSA Act is therefore satisfied as far as the overpayment is concerned.

The commissioner has stated that the decision is a final decision but incoherent and that the Sos has accepted that for purposes of earnings, which might affect entitlement, there was an error in the approach of the decision maker (there were many other errors which they have not admitted to!) The Commissioner goes on to opine that although the SS was not the subject of the appeal to the commissioner, and, accordingly final, it would appear that following the submission made to him in CIS/3512/2007, which he accepted, issues of fact which were pertinent to a decision, can be raised in overpayment decisions. He then refers us to what he says in para 8 of CIS/3512/2007. This is what he wants to be addressed on at the oral hearing.

Any comments would be greatly appreciated in relation to this. I am off to study this case in more depth but I have a few arguments in mind.
The decision that the Sos use i.e. CSIS/1253/000 (may actually be off use to me)

Cheers

Re above sorry forgot to mention that Sos are asking commissioner if they can have another change to discharge the burden of proof. Thats where CSIS/1253/00 may come in handy. In this decision although it confirmed that the original decision may not have to be produced the commisisoner does confirm that the Sos case was badly prepared, lacked information that the tribunal required and that he felt it was undesirable to cause further delay and expense by giving the Sos another opportunity to discharge the burden of proof. There has already been two tribunal hearings for this case and a forthcoming commissioners hearing. Do you think this argument would be useful in my case?