Dear all,

I have a case coming up for tribunal whereby the client did not state his wife's savings in his A1 form. This has lead to a substantial overpayment of Income Support.

The matter was investigated by the fraud team who established that the client did not know about his partner's saving but that it is still an 'innocent misreprestation' and therefore is recoverable. The submission actually states that a husband should make it his business to know about his wife's buisiness!

This seems old fashioned and unfair, however, this seems to be the current way things stand. Obviously it would be a different matter if they had stated failure to disclose.

I have seen case law from 1982/85 which supports the Sec of State view that the overpayment is recoverable but there does not seem to be any current caselaw about his matter. Apparently it all boils down to the signiture on the form.

It just does not seem right to me... can anybody shed some light on this and tell me if I can argue this case successfully? To date I am afraid that there is no merit in taking the case forward. Any suggestions/caselaw etc will be greatly appreciated.

Thanks Laura

I dont think the bit about a husband "should make it his business to know about his wife's business!" is of any relevance.

Misrepresentation is a matter of fact.

I think the only way you could argue that the overpayments was not due to misrepresentation would be if your client had added a caveat "not to my knowledge" to the statment, or had verbally qualified the statmentin some other way

Old caselaw such as R(SB)9/85 and R(SB)18/85 still holds.

As Stainsby says "Misrepresentation is a matter of fact". Following on the logic from that though, I cannot see how the gentleman could be said to have misrepresented (even innocently) a 'Fact' that he had no knowledge of.

The part about the bit about a husband "should make it his business to know about his wife's business" is nonsense - this is 2004 not 1904 - I don't suppose half the DM's know what's in their Wife's bank accounts.

Out of curiosity, how did the said savings eventually come to light?

Not sure really either way but should presumably take into account that he is applying for public money and that both his and his wife's savings would be an issue. Could be sugested that this implies a reasonable requirement to ask. Now if he did that and she lied to him could that mean that the o/p may be recoverable from her? Realy not sure where that could go...

We have just published in rightsnet briefcase a summary of Commissioner Parker's recent decision CSIS/345/04 in which she holds -

'A claimant who, for example, states that her partner has no capital when, entirely unknown to her and it is not a fact which she could with due diligence have discovered, the partner owns property, nevertheless misrepresents under section 71 of the Administration Act; negligence has no relevance ...There is no relevant analogy with an overpayment based on “failure to disclose”; for that concept, the accuracy of the information available to the claimant and on which he or she acted is pertinent to whether disclosure is reasonably to be expected in all the circumstances. To the contrary, however, misrepresentation is founded on an untrue statement made and the reasons why that has arisen do not alter the nature of the falsehood.'