Hi

Wondering if anyone has had a case re the agents misrepresentation?

Summary of case

Client had agent who collected benefits each week. Client entered long-term care and the agent accepted responsibility to pay care home fees and informed us that AA had ended. However, agent failed to pay care home fees, amounting to £3500 and council had to become appointee. She also continued to collect AA and then subsequntly received a direct payment form for AA, to be paid into the bank when the old man was already in care. This was signed and it has been quered whether signature is actually the claimants as it differs from teh signature on the original claim form. The client has been furnished with an AA overpayment in excess of £3000.

It was our contention that the department can pursue any person who misrepresents or fails to disclose under s71 Social security act 1992 ie the agent. Consequently we argued this and also noted that they had failed to discharge the burden of proof that the overpayment was recoverable from the claimant.Given there was issues over the signatures and cashed order books etc, I felt they should have requested copies books and investigated this matter further.Further to this there was issues as to whether the claimant was clearly and unambiguosly informed of there said duties as it was sample letters that were incorporated within the appeal docs!! Hooper and other decisions were used to support this route.

In summation, the Judge basically said that they can't pursue the agent and I don't agree!! !!! They said that it was fraud but they couldnt deal with this!

Help!

It is now clear following the decision in B v DWP (2005) CA, that the legal obligation to disclose is to be found in regulation 32 of the Claims and Payments Regulations 1987 and section 71 of the Admin Act is only concerned with the Secretary of State’s remedy for the breach.

Regulation 32 makes it clear that the duty only applies to the claimant or to a person “by whom or on whose behalf, sums by way of benefit are receivable…” This category would include appointees but, rarely, agents.

The court in B makes it clear, particularly at paragraph 48, that the obligation contained in regulation 32 is a legal one and not a moral one. So it will be rare for agents to be bound legally by regulation 32 and overpayments will usually not be recoverable from them. The use of the phrase “any person” in s71 is thus misleading in this context.

Therefore, the claimant’s remedy against the agent would lie at private law and fraud, of course, is an entirely criminal matter.

Thanks for your reply. I appreciate your help. S71 is indeed misleading!

Best of it was, DWP had initially said that the person was an appointee and then came back stating agent!!! I just feel so sorry for the man as he now has care home arrears and a AA overpayment! My intial arguement was that they could recover from the appointee if they had retained the benefits for their own use!

Thanks again

Nicola

In the circumstances you could always ask that the DWP waives recovery under hardship. You know how soft hearted they can be!

What did the agent do with the money and would the police be interested?

I think this is more about failure to disclose rather than misrepresetnation, and its still the case that there can be no failure to disclose something that is not known.

Did your client know that his care home fees were being paid by the LA? If not then there was no failure to disclose.

In tha alternative, did the DWP give clear enough instructions that those matters had to be dislcosed? If not then your client has anohter defecence following Hooper v SOS (reported as R(IB)4/07