Hi,
I have a lady who is acting as an appointee for her 27 yr old son with Asberges, who has been certified mentally incapable.
He has lived in a care home since 19 yrs old which is 70 miles+ away, she has little contact with him and has been guided by the staff at the care home who found him supported work to pay of his overdraft.The appointee was unawaree of his new job and he was overpayed IS for a year before they discovered he was working 16 hrs when he reduced it to 12hrs and it was reinstated.She has appealled based on the fact that neither of them were aware of the material fact that they have supposedly failed to disclose.
Any ideas welcome! Thanks

To all intents and purposes a person taking on the role of a DWP Appointee becaomes the claimant. For an overpayment to be recoverable there has to be a failure to disclose, which implies some knowledge of the fact. If the appointee had no knowledge of the relevant then it is arguable that the OP is not recoverable.

It does however bring into focus whether the correct or most appropriate person is acting as Appointee if she has little contact with her son.

Presumably he was aware of the fact that he was working 16 hours a week, He will have been told specifically that he must report finding work. The fact that he was unaware of the importance of either is irrelevant since Re B (a case relating to a person with learning difficulties).

aspergers can be associated with learning disability what the department would have to show that he knew it was paid employment
if he didn't know that then no failure to disclose. He might have thought it
was voluntary work esecially so as he might never have seen the money as it was going to pay off an overdraft.

Regardless of the failure to disclose you should look at R(IS)5/00
which deals with the question of who should pay. The decision gives special protection to appointees. The appointtee is only liable to repay if they have held onto some of the benefit instead of paying it over or failed to use it for the benefit of the disabled person The appointee will also escape recovery if in failing to disclose or misrepresent they have acted with "due care and diligence" See the footnote at page 55 of volume 111
of the 08/09 social security legislation.

The problem with this for a representative is that you cannot represent
the appointee and the disabled person as they have contrary interests
if the case gets as far as the question of who is liable to repay.

Thanks Chris, have established that he was completely unaware of payment and did not have benefit payments made to him anyway, they were made to appointee so wont be recoverable from him. We can argue the due care and diligence angle and thanks for the tip with R(IS)5/00

What did the appointee do with the benefits?

If they were put in a bank account in his name (which they should have been - an appointee must not mix up claimant's money and her own money), the money is available to repay, insofar as it has not been spent on him. So if he is found liable to repay, his money is available to do it. You cannot argue that the money was not paid to him as in law his appointee is not distinhuishable from him - she is the oly way in which he can receive his benefits.

Many parent-appointees hoard their children's DLA, which can then lead to problems with capital for the claimant (or indeed the parents in some circumstances).

This is all very useful for a case we are looking at currently but I am having difficulty finding the decision R(IS) 5/00. If anyone has a copy could they email to me (or send me a link to where I can find it)? Thanks.

email: jane.hayball@greenwich.gov.uk

here you go ...

http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=361

and as i think i pointed out on another thread, can Re B stand with the mental capacity act?

and bear in mind that in Re B no one said that she did NOT have capacity ...