I am going to Tribunal with a client whose husband was claiming IS and DLA. He had been admitted to hospital in September 2001 with a life-threatening heart condition, expected not to live for long and incapacitated. She contacted local DWP about appointeeship for his benefits and was visited after her husband had been in hospital by someone from the home visiting section in the local DWP office.

At that meeting in her home she told them when her husband went into hospital. Four weeks had already gone by. At the time she didn't know about the hospital rule. She gave the visiting officer all the relevant date information of husband's admittance. The visiting officer made no mention of the fact that DLA shouldn't be paid or that she should inform Disability Benefits Centre. She expected him to pass information on to the relevant authority or to have told her the rules. She didn't inform DBC assuming local office would do it.

Husband came out of hospital in October 2002.Now there is a £3,000 overpayment as husband was in hospital for over a year. The DBC argue that Commissioner's Decision R (SB) 15/87 is not relevant because DLA and IS were paid by separate order books at the Post Office and not as one payment of IS therefore there is a continuing obligation to disclose to the office administering the benefit.

My argument would be that my client disclosed the material fact to local DWP and expected them to say something about DLA rules and to advise her. DBC are saying that the overpayment is recoverable.
What Commissioners Decisions would be relevant and as it happened in
2001 would decisions after that date would that affect the Tribunal's
views?

'Hinchy' should apply here. The Court of appeal held in this case that where one DWP office is aware of a particular fact the claimant is not obliged to notify any other DWP offices dealing with other benefits. Unfortunately the DWP are in the process of challenging this decision, and I understand that the Appeals Service are holding all cases involving this issue in the meantime.

This issue is becoming slightly less black and white as time goes on - as we now have Pensions service happily completing AA and DLA (for the 60 to 65's) claim packs, having belatedly decided that these are part of their "core" business, then anyone over the age of 60 may quite possibly report a change of circs to PS. We also have Jobcentreplus setting itself up to be a one stop shop for all those who wish to claim working age benefits - then why shouldn't claimants report change of circs to them?

If we can converse with each other here, then surely the various branches of DWP can find some way to talk to each other.
In this case, how as the DLA being paid? The visiting Officer must have been aware of the DLA, as he would or should have checked on the case before visiting - even we do that...the fact that he probably knew, or should have done, and did not act, or offer guidance to the claimant is to my mind a good basis for an appeal.

imo it is a very significant point that the visiting officer called in response to your client's enquiry about appointeeship for her husband's benefits. the circumstances were that her husband was critically ill and not expected to live. your client fully disclosed the relevant facts, and the circumstances were such that she could reasonably expect the representative of the department who called at her home to provide any relevant advice, and to carry out any follow up administrative action as appropriate. i don't see how she could be held to have 'failed' to disclose a material fact when she had done all that could reasonably be expected of her in such difficult circumstances.
in addition, she was not responsible for the VO being an income support VO - that is an internal departmental matter which should not be used against her. She contacted her Local Office for advise on appointeeships for her husband's benfits - plural. She has no responsibility for the DWP's response. If she had contacted the DLA centre, they would have referred the appointee action to the Local Office. They don't visit from Blackpool.

Second, the VO DOES have a responsibility to give appropriate advice and take necessary follow up action. It's part of her job and she gets paid to do it. This definitely included forwarding the hospital admission information to DLA centre. Further, the VO would have had to send a copy of the appointee form (BF56) to the DLA unit, (or alternatively communicate the details, if that procedure has been changed.)
To forward the appointee details, but to OMIT the hospital details is AN OFFICIAL ERROR, to which the overpayment from the date of the visit should be attributed, not the actions of your client. there's a strong argument, imo, that the intervening action by the VO broke the causal connection between husband's admission to hospital and the consequential overpayment. there is case law on this - sorry don't have time to look it up...

if the DWP CHOOSES to save money by using untrained or unsupervised or incompetent staff, the RISK it takes is that it has to write off overpayments caused by official errors. expecting IS claimants to underwrite the risks of poor service would result in social injustice, wouldn't it?

the DWP knows the law does not allow them to recover overpayments caused by official errors - but hey, if you don't train the D-Ms, risk management gets better 'n better, no?

it might conceivably be worthwhile obtaining a copy of the visiting officer's report...

hope this helps

jj

I was told last week by DBC that it was not them that we should have told about a client going into hospital but Pensions Service as AA was paid in a combined payment!

On asking girl at DBC if that meant it would not be recorded she said 'well I would but not every one would'. The fact that the call to the DBC was not recorded suggests the worker got the wrong person!