Dear fellow welfs

Scenario - client was claiming IS as a lone parent, it appears that she also had a case for claiming IS as 'sick person' (not to mention SDA and DLA) at the time (but alas claimed solely as lone parent) due to severe alcohol dependency, depression, personality disorder and physical health issues e.g. pancreaitis, abdominal pains stemming from alcohol dependency necessitating short stays in hospital as an inpatient. As well as detox admissions etc.

Anyway, she lost custody of kids due to chaotic behaviour etc, but didn't appear to communicate this to DWP, and has a big IS O/P, to make things worse the IS O/P was appealed (by a housing support worker) but then struck out as client didn't return TAS1 (client in an especially very bad way at time and no 3rd party got in touch with her to help), we got the referral few months later and have applied to have it allowed, so awaiting decision from tribunals service whether to allow appeal or not.

At this stage don't have copy of appeal papers, infact have minimal info,other than she is being prosecuted and having spoken to solicitor its clear the charge is dishonestly etc etc etc, so assuming the DWP O/P will be misrepresenting a etc etc etc?.

To get to the point - and looking ahead at offsetting O/P as one part of the strategy?

Has anyone got any thoughts, ideas, observations, advice etc at backdating IB credits, can't get a med 5 from GP but have a letter from GP indicating from 2000 to present she has had alcohol dependency issues negating her ability to function and a letter from a detailed report by consultant psychiatrist going into gory detail (grim stomach churning misery) about her circumstances from before, during that period and to the present.

Any mileage using GP's letter and detailed forensic psychiatrists report, asking the IB section to use powers under reg 2 (1)(d) Social Security (medical evidence) regs 1976, instead of med 5, they contain a lot more info that a med 5 would.

yours pitifully grateful for any learned advice.

andy

Andy, your client doesn't need backdated credits. Only the acceptance of her incapacity for work from the earlier period. Once she has that, then there was a legitimate entitlement to IS for the whole period. JC+ will probably insist that there must have been a claim for IB in order to establish IFW, but that is poppycock!

Your not starting in the right place with the med evidence regs though. sch1B IS regs, para 7, specifies that an incapacity claimant be incapable of work in accordance with part XIIA SSCBA, so see s.171A to the act, from which the IFW regs were made.

According to the latter, the ME regs are only applicable to the own occupation test, so no reference need be made if the PCA applied (which it almost certainly would have done). Reg 2(1) of ME regs seems to confirm this.

This seems like a mute point, but I don't know if a finding that someone has not provided ME in accordance with the ME regs is an appealable decision. By bypassing the ME regs, you get directly to reg 6 IFW regs, thereby potentially getting only one determination instead of two. Reg 6(2) contains a similiar provision to that you highlighted in the ME regs. A decision on IFW including, I would surmise, one that rejects IFW exists using reg 6(2) is appealable, so a tribunal can consider IFW using reg 6(2) as well. From the sounds of it, that would be a relatively straightforward case to make out.

As a final thought, check out reg 2(1) IFW regs, definition of "medical evidence", which seems to be fairly helpful.


I've rushed this somewhat, so happy to be corrected on anything, but sounds like you need it all done rather quickly.

Tony

Thanks Tony, i've got to rush for the bus so i've only skim read it.

andy

Tony, i'm at home so i've limited access to the legislation you've mentioned, so i'll have to check it out on monday. But taking your advice on face value i like it, in fact i like it a lot because i had already sent off a sub and the med evidence etc to the local IB section and had this uneasy feeling about the route i'd taken, so i'll check out it and if as looking increasingly likely, sort out a supplementary sub articulating the advice and the route you've suggested.

Thanks once again Tony, you've obviously been ferreting around the legislation/regs and made a lot effort and its really appreciated, and could make all the difference for her.

see ya andy

Thanks Tony, for all the help, really invaluable and IB credits backdated too.

see ya andy

I’d love to be wrong on this but IMHO she doesn’t really have a case.

Reg 13(1)(b) of the Payment on Account and Overpayment Regs states that there shall be offset

(b) any additional amount of income support which was not payable under the original, or any other, determination, but which should have been determined to be payable—
(i) on the basis of the claim as presented to the adjudicating authority, or
(ii) on the basis of the claim as it would have appeared had the misrepresentation or non-disclosure been remedied before the determination;
but no other deduction shall be made in respect of any other entitlement to benefit which may be, or might have been, determined to exist.

but no other deduction shall be made in respect of any other entitlement to benefit which may be, or might have been, determined to exist.

Presuming that she would only have qualified for IS originally as a single parent or as a person incapable of work then the problem is that if she had rectified the non-disclosure then that would have left a claim with no basis and therefore no entitlement. There is nothing then to offset. She did not provide evidence of IFW at that time so the claim had to “appear” as one with no basis.

There is no room within the reg to recast a claim retrospectively as one on a different basis (based on information newly obtained). The final paragraph of the reg makes that clear.

Thus even if she now can provide evidence which opens up a retrospective period of IFW then a new IS claim is required with a maximum backdate of three months. The only advantage would be in getting the disability premium earlier.

Thanks Paul, errrrrrr can anyone show Paul is wrong.

Hi Paul,

checked CPAG offsetting overpayments etc (i feel such a dweeb, should have checked it long before), thanks Paul for the warning, its a salutory lesson, i thought i had got the overpayments reduced from £16000 to £3000. The only crumb of comfort is she would have been eligible for IS for 10 months or so, at least we can offset that (thanks once again Tony).

I think the next step is trying to enlist the help of the local MP and try to get the DWP to write off the overpayments, on the basis of it not being in the public interest to etc etc etc. Medical evidence from local CMHT is grim blood curdling stuff.

him suitably chastened

It's a long shot, but might be worth having a look at R(IS)10/05. Para 3:

"3. where the evidence suggests that another prescribed category may be relevant, then in the exercise of their inquisitorial jurisdiction, the tribunal must consider that possibility irrespective of whether it is also raised by either of the parties (Kerr v Department for Social Development (R 1/04 (SF)), R(IS) 11/99, CIS/1997/2002 followed) (paragraphs 25 to 28)"

In that case, the claimant was incapable of work. It was later found that she was working and for those period was not incapable of work. The commissioner found that the DWP had an inquisitorial function in considering if any other conditions of entitlement were met (the relevant condition here was 'disabled worker').

The case is a little different because here the circumstances for entitlement as a disabled worker did exist at the time the original IS claim was superseed. But in your case, the IFW did not exist at that time (the fundamental point that Nevip raises). However, if the claimant had given any indication of her incapacity for work at the time (if, for example, IS was suspended and info sought from the claimant that suggested she was ill) then it might be possible to bring in this principle.

Failing that, I guess the only other escape might be to find a flaw in the superseeding decision that amounts to an official error suitable for a late revision. In that case, I can't see any reason why the IFW, if established, cannot then be taken into account. I take it the appeal lies against the overpayment decision and not the original supersession? It's a common flaw in overpayment decisions that the original supersession wasn't carried out correctly, so it might just be worth having a look. The downside is that this would create extreme complexities.

For "a late revision" read "an any time review".

R(IS) 10/05 is distinguished. The original claim for IS in that case was on the basis of IFW so there was clear evidence at that time that the claimant was disabled. When he started work then there was clear evidence at that time that he was both a worker and disabled. Hence the adjudicating authorities had to consider whether he was a
"disabled worker" for the purposes of paragraph 8 of schedule 1B, when
paragraph 7 no longer applied.

The key is ‘the claim as it would have appeared had the failure to disclose been rectified before the initial claim had been determined’. So in R(IS) 10/05 if the claimant had disclosed (what reg 13 does in practice is allow the circumstances to be treated as if there had actually been no failure to disclose) the fact that he was working after making the claim but BEFORE the claim was determined then the claim, on its face, clearly showed that the claimant was both disabled and a worker. Hence the decision maker/tribunal should have made enquiries to see whether the claimant could be classed as a disabled worker for the benefit of paragraph 8 and if so offset the overpayment accordingly under reg 13.

Another example might illustrate further. A single parent claims IS for two children. Twelve months later one goes into care and she does not inform IS. A subsequent overpayment then falls to be offset by the amount that IS was reduced because of a deduction for Child Benefit to which she was no longer entitled. The claim as it would have appeared prior to determination as if there had been no failure to disclose would have shown that there was only an entitlement to CB for one child.

Thus reg 13 only allows the adjudicating authorities to consider how the claim would have appeared prior to determination. How it could have appeared afterward is not relevant for the purposes of mandatory offset under reg 13. However, as Tony says, there are always discretionary options particularly if there has been no true loss to the public purse.

Knew it was a long shot... Can't take credit for discretionary options though, but totally agree.

Tony I agree with you on the discretionary option of not recovering based on no real loss to the public purse. Also, if from a date after the claim was determined the Department had information that threw up a question on the claim then failure to make further enquiries could be official error and that she might have had an entitlement to IS based on being a single parent and being incapable of work. This would not amount to offset under reg 13 but would be a superseeding decision based on a change of circs and the decision stopping entitlement would need to be appealed.

Paul,

We are in the process of pursuing the discretionary option via the local MP.

The "information throwing up questions" would be Jan/Feb 2004 failure to make enquiries" etc etc, (overpayment period april 2002 to dec 2004).Can you clarify the last bit please "but would be a superceding decision based on a change of circs and the decision stopping entitlement would need to be appealed".

thanks andy

Prior to raising an overpayment under section 71 of the Admin Act the award decision(s) should be superseded under that section. A decision stopping entitlement should then be issued to the claimant (this does not always happen) so that the claimant is given a right to dispute entitlement stopping. That is the decision, which needs to be appealed in order to try to get entitlement re-instated along the lines that Tony originally suggested.

The overpayment recovery decision is a separate decision and is appealed separately either on the grounds that there actually has been no overpayment or that all or part of it is not recoverable either because of offset or that there was no failure to disclose/misrepresentation. These are the most common issues.

already checked out R(IS)10/05, unfortunately nullified by Paul's point, with the exception a 10 month period.

In terms of whether the client gave any indication of incapacity for work, she completed? an A1 and A2 form within a month of one another, each referred to short inpatient periods in hospital, the latter she appears to have had at the very least scrutinised? by a (DWP)interviewing officer, because that box is signed. Which possibly raises issues around official error in the abstract sense, but proving there was obvious glaring omission and wrong advice etc, assuming there was, because we don't know the nature of what happened.

Yeah the appeal is against overpayment, flaws amounting to official error in superceding decision? looked at that one too.

Thanks Paul

For the sake of completeness:-

I’ve just had the chance to read R(IS) 10/05 again. If you can appeal the decision stopping entitlement (as opposed to the overpayment decision which may or may not be appealed separately) and show that there was an indication available to the Department at the time of that decision that the claimant may have qualified for IS under another provision then R(IS) 10/05 makes it clear that a decision maker/tribunal must make enquiries as to whether the claimant does so qualify.

Mmmmmmm checked the decision? stopping entitlement 06/12/2005 in appeal papers i.e. there is a copy of revised entitlement decision i.e. internal stuff, can't see any evidence of a copy of a decision letter though, begs the question whether one was issued to client.

Appeal papers in overpayment cases do not always include a copy of the supersession of entitlement decision, merely evidence that a superseesion did in fact take place. Enquiries often have to be made as to whether a decision was actually issued. A decision has no legal force until notified to the claimant (R (Anufrijeva) v Secretary of State for the Home Department and Another (2003) HL). Therefore entitlement to benefit should continue, in my view, until that event occurs.

I would suggest that a decision to recover overpaid benefit issued before the supersession decision was invalid because at the time of its issue the claimant was still entitled to benefit. Thus if that is so in your case ask the tribunal to throw the overpayment case out.

As to my last post I confused myself slightly. In an entitlement appeal (as opposed to an overpayment appeal), as the tribunal stands in the decision maker’s shoes any new evidence of the claimants incapacity for the period in question must be considered by the tribunal to see whether a person is still entitled to IS under another provision.

Starting with the last paragraph, its easily done, but i got your drift errrrrrrventually.

As for the first two paragraphs,really helpful, will bang off a letter and Cc to Tribs Service asking for copies of the supercession of entitlement decision letter issued or not issued? exists or doesn't exist?

Going off at a tangent, i've just received client's medical record printout from GP its 33 pages long, as well as indepth evidence from CMHT from 1999 - to present. We've arranged appointment with local MP to try to enlist his help in getting overpayment written off etc. We get a lot of referrals via his office and have a good relationship.

Idea being he carries more weight than us and potentially assert more influence/pressure on the regional manager. As already mentioned in the previous postings the Care/Health professionals evidence related to health conditions, personal circumstances is mind blowingly harrowing (includes present)which we've got all parties authorisation to give MP and for him to forward to DWP bigwigs if he agrees to get in volved. We are not so naive to make assumptions or base everything on the premise it would be written off, but if ever a case (yeah i know there's loads that merit it) demanded it in the public interest, this one cries out for it.

Thats not Welf hyperbole either!

Coming late to this, but can you not sidestep the problem of the offsetting provisions by applying for the original superseding entitlement decision to be superseded itself, on grounds of ignorance of a material fact (the availability of an alternative condition of entitlement)?

The usual problem of not getting arrears of benefit on a supersession doesn't matter - the benefit's already been paid. A further supersession of the entitlement decision simply invalidates the overpayment and recovery decisions.

I'm pretty sure I have succeeded witha similar argument before, but that was in a previous job and I can't remember all the circumstances and other details (or even which benefit it was).

Its never to late Gerry! Thanks you've definitely given me something to look at,if any of the usual suspects have a opinion to proffer in such way that makes allowances for my tiny little dazed mind, feel free too.

In return for my lack of knowledge on benefits,i'm taking refuge in nature and suggesting the following. If it gets damp in the near future, for those who live near beech woods with a lot of leaf litter, keep a look out for Chantarelles a gorgeous delicious mushroom with a lovely peppery flavour, difficult to confuse with much else. You must have a few quality funghi guides he hastens to add, and be really frugal you only need a few, have a few in an omelette and it'll be culinary nirvana., and pick them carefully i.e. gently twist them.

It might help people to know they are a pretty orangey-yellow and sort of funnel shaped. They're supposed to smell faintly of apricots. Not to be confused with the False Chanterelle which grows under pine trees and is at best disgusting (I hear).

Sometimes you can get them in Sainsbury's!

Chantarelle: wasn't she in Big Brother?

Oh my gosh but but she's a false Chantarelle, and lives in an urban habitat. As for Sainsbury Ariadne, that's heresy.

Anyway, back to the original posting, i followed everyone's advice, in writing to DWP, and got a virtual instant response which shocked me even more than Torquay United's start to the season in the Blue Square Conference elite division, after the misery and hurt of last season when we lost 22 successive games on the trot, and were relegated.

Got decision letters today superseding the entitlement decisions back in 2005 in favour of client deciding she was entitled to IS having been continuously incapable of work since 2001 etc through relevant o/p periods. With obvious implications on overpayment amounts and criminal prosecution.

As per usual thanks for all the help, patience and not least all the hard work and thought that's gone into the advice.

Just got a phone call from clients solicitor saying DWP are dropping the prosecution, from what she told us, it was the above supercession of the entitlement decisions wot done it.

Client has also on a separate issue now got access to her eldest child too, so hopefully her situation will start to stabilise.

Anyway i know i've said thank you so many times i could do a passable impression of the nodding dog, but a billion more thank you very much's for all the above postings.