Hi

I have a client who was entitled to middle rate care component and the lower rate of the mobility component of Disability Living Allowance. Her payments of Disability Living Allowance where combined with her Income support around 2002 the period of award was until 01-06-06. However the combined payments continued to be paid until March 2008 by which time client had been overpaid Disability Living Allowance albeit paid by Income support.

My argument is that if the Disability Living Allowance unit had given the Income support office the details of the Disability Living Allowance award, which is presumed would also include the period of the award, then can the client be said to have failed to have disclosed?

Further if it is argued that there has been no failure to disclose could the Department for Work and Pensions still argue that client contributed to the overpayment and so it is not official error and so can still seek recovery?

Tue 08-Sep-09 04:34 PM by nevip

Is the DWP seeking to recover and if so is it under social security law or through the courts. If the former then the Department must be able to show that there has been a breach of statutory duty by the claimant.

The material fact in question that has not been disclosed by the claimant is that she had no lawful entitlement to DLA after a certain date. However, she was probably not put under any obligation to disclose that to the department. That instruction probably never appeared in any correspondence sent to her by the Department so I cannot see how she is in breach of regulation 32(1A) of the Claims and Payments Regulations.

Remember, the test is not “did not disclose” but “failed to disclose”, which contains some breach of an obligation that the claimant was put under. Was the ending of entitlement a change of circumstances covered by regulation 32 (1B)? Possibly. If so, the question therefore is, was it reasonable for the claimant to tell the Department (and which office) that which it already knew (see the case in B)? That will depend on the facts of the case.

If it is decided that there has been no failure to disclose by the claimant (and I'm presuming misrepresentation isn't in issue) then the enquiry stops there and the overpayment is not recoverable under social security law.

If the recovery is one of restitution through the courts for unjust enrichment then the claimant has a defence if she genuinely believed she was entitled to the money and has spent it. Again, that will depend on the facts of the case.

Very similar situation (for info) - HRC+HRM paid with Incapacity fortnightly, and every four weeks and Motability also paid - been going on for some time - unfortunately, on the strength of this income, a loan of £45k was taken out for an item. Payments reverted to being correctly made in July this year and no determination re an overpayment has been received. Client now has a £45k loan to pay off and a potential o/p as well. But they wouldn't have taken out the loan if they'd been paid properly as they couldn't have afforded the repayments. (Met client for the first time one month after payments had reverted to being made correctly).