Hi, I'm hoping someone can help me with a Disability Living Allowance overpayment appeal.

My client has Disaccharidase Deficiency Syndrome which is an enzyme deficiency causing severe bowel problems and they have to use the toilet up to 20 times per day. Trips out have to be planned so the positions of all public toilets are known in advance. When using the toilet their legs often lose sensation and they sometimes require assistance when rising.

My client was previously morbidly obese, but they lost a huge amount of weight and their conditions gradually improved over time, and this is why the decision was superseded and the overpayment created. However, the above condition has remained constant and I’m wondering whether this in itself is sufficient to qualify for any rates of Disability Living Allowance. Has anyone dealt with a case similar to this or does anyone know of any cases that could help?

Also, the Tribunal has issued a direction that I as advisor must discuss with the appellant the fact that the Tribunal has jurisdiction to supersede the decision to an earlier date than the DWP decision. Has anyone else had any experience of such a direction being made and would the Tribunal be likely to do this in the absence of any evidence showing improvement in the conditions prior to the date used?

Any thoughts or comments greatly appreciated

so presumably the mobility and care needs arising from being morbidly obese no longer exist, as a result of the weight loss, and the DWP have withdrawn DLA from the date they suggest the mobility and care needs no longer existed?

Have i got that right?

and then you need to consider separately care needs arising from the remaining condition, which from what you say are a lot less than the care needs he had previously...

mmmm

Yes, that's exactly it...

It's just the nature of the remaining condition that I'm really not sure of. It's obviously a very disabling consition, but I'm struggling to see what care or mobility needs arise from it.

that's what i was thinking, but wanted to be clear about what you were saying before i said that...

I had a case where severe faecal incontinence was accepted as grounds for high mob.
See CDLA/0217/2009

mmm .. but that claimant had other physical problems restricting mobility in addition to the incontinence.... i don't read that myself as being wholly about the incontinence, more about the relationship between all the issues...

Other problems did not really affect mobility - awarded solely on incontinence grounds.

To create an overpayment the decision awarding benefit must be revised or superseded. The burden of proof is on the secretary of state. See CSDLA/765/2004. Can the secretary of state prove on balance that there has been a relevant change of circumstances? Why was the benefit awarded in the first place? Is there documentary proof giving reasons for the initial award? See also R(DLA) 6/01. For the overpayment to be recoverable the secretary of state must comply with s.71(5A) of the SSAA 1992.

It's relatively unusual for the DWP to seek repayment of a DLA overpayment if the condition was one where there has been a gradual improvement, so that the claimant might have failed to notice the change and thus couldn't reasonably be expected to disclose it. He may not have realised, for example, how many of his needs were the direct result of obesity (a profoundly disabling condiiton in itself, at least in extreme cases.
Are they actually seeking repayment of any alleged overpayment or are they just saying he shouldn't have had the benefit?

".........it's relatively unusual for the DWP to seek repayment...where there has been gradual improvement......couldn't be reasonably expected to disclose it........"

I wish that were the case around here, where any number of appeals on recoverability are (thankfully) won on just that point...if the DWP wasn't seeking recovery in the first place, we would have no need to appeal as often as we do (with a high percentage of success)!!

Our experience is that the DWP seeking NOT to recover is very much the exception, not the rule in this kind of case...

This happens in pretty much all cases where the Department ends or reduces and award itself due to revision on so-called CoC!!

The nature of a change in a person's condition/diagnosis/prognosis is in many ways of course irrelevant for the purposes of DLA (DMs remind us of this all the time when it suits)...the nature of the care and mobility needs stemming from the condition are of course the ONLY material FACTS which matter...this raises not only questions of gradual improvement, variability etc etc, but also about what the very duty to disclose is!...is it every time a person can walk a few yards further than he put on his claim form (if he can remember)?, or everytime his carer doesn't turn up to provide him with that element of care which may have just got him over the line of eligibility (not that he appreciates/understands that aspect)?. When that distance then reduces the day after (or he is laid up for several days through over-exertion afterwards) or his carer comes back..does he then inform the DWP..should he have his own dedicated phoneline, and bounce in and out of entitlement???

for most clients the only reason that they are aware that they get DLA is that a DM informs them in a very basic standard letter which gives extremely scant reasoning for the decision being made in the way it has been...it will be couched (understandably and following statute), for example, as "You are virtually unabkle to walk"....what does that phrase actually mean to a punter??...for most it will mean that whatever (estimated) distance they have put on the form must equate with that definition...

as an estimate (which it clearly is) than any improvement from that distance (or indeed worsening) can only really be seen as a change if it is a significant change...

so how do we define significant?

....of course some clients could possibly define it fairly easily...

others would absolutely struggle...

reminds me of the elderly chap who put 150 yards distance on his form some yrs ago, and was awarded HRM...never asked why...never questioned it (why would he?)...was then spotted walking in the Park with a dog (which wasn't even his actually - but that's another story)... he was subsequently subjected fraud charges and to IUC etc...really rattled him.

The only distance he was ever observed to walk was around 100 or so yards...all the video evidence amounted to just that..yet he was charged and deemed overpaid and recovery sought....

it was only when (on appeal) it was pointed out that the Appellant had never claimed anything other than 150yds that the DWP caved in...and why had he been awarded HRM in the first place?

....the EMP in the original claim (amazingly) had estimated 40metres...perhaps they should've recovered it from the EMP!!!!

This issue of what amounts to:-

a) a disclosure duty and
b) the materiality of any fact

is an aged chestnut. The question of whether there has been a material change of circs in such cases is very arguable for just the reasons stated in previous threads and alluded to by Ariadne...however, to suggest it is rare for this to be a ground of recovery under s71 in such circs is certainly not our experience.

Attempts to recover DLA following a supersession are certainly increasingly common - our record is £77,000 going back 17 years. But they NEVER get the law right. Before recoverability can even be considered they have to show grounds for retrospective supersession under Reg.7(2)(c)(ii). And this requires not just that there has been a relevant change of circumstances but also that the claimant could reasonably have been expected to realise that the CoC should have been notified.

That is the test they have to satisfy before they remove past entitlement and they almost never bother even to consider it - it raises all the issues mentioned above and more.

Richard Atkinson

this reminds me of a client i once had who had high rate mob & care. with her high rate mob, she got a motability car. some jealous neighbour dibbed her in - fraud team followed her about as she drove ...doh....and DLA wanted all their money back as well...

Thanks to everyone who responded. Plenty to go at on the recoverability issue!