Hello,

I have two questions regarding an upcoming IS appeal, which relates to an overpayment due to the claimant being commited to prison and not notifying the DWP. His partner had care of a child under 12, and thus would have been considered eligible for Income Support in her own right at the time of incarceration. Sadly the case law doesn't seem to support the idea that this might be offset against the overpayment.

The claimant's representative notified the DWP by letter within one week of the date of the claimant (who has severe depression) being committed to prison. The DWP have no record of the letter. Are there any decisions supporting the idea that no record of receipt of correspondence does not in itself indicate that the claimant failed in their duty to disclose?

Thanks

There are several authorities where the "I did notify you" v "No you didn't" has been considered.

However, none will really help as it is the word of the clmt against the DWP. It's a factual issue, rather than a legal one. The one unusual aspect in this case is the notification is alleged to have been done by the rep. That gives the clmt's argument far greater weight than would normally be possible. Assuming both the rep AND the clmt are credible, I would (normally) expect a Tribunal to find for the clmt in such circumstances.

Any argument in the appeal should be simply put:

"I wish to appeal against.... <decision date and details>. The grounds of appeal are as follows:

1) The overpayment is not recoverable as I did not misrepresent, or fail to disclose, a material fact to the DWP.

2) My change in circs was notified to the DWP by my representative - please see his written and signed statement confirming how and when he made this notification.

3) The fact the DWP now says it has no record of this does not mean it did not receive it."


In HB/CTB, the issue might be raised as to what the clmt did when there was no reply. But, the o/p law is different for IS and, if my understanding is correct, this issue makes no difference to the fact of disclosure and the matter of recoverability of an o/p of IS.

One other potential line of attack... did the DWP's original awarding notification letter contain PROPER, non-vague, instructions as to the nature of the changes your client was meant to notify? If not, there was no breach of duty, even if he did not notify the DWP. Even in relatively recent years, the "INF4" (is that right?) has been roundly criticised on numerous occasions for being, well, rubbish really (depending on the facts of the case).

As an aside, it may be worthwhile making a DPA data request relating to your client (ensure the request makes reference to ALL data, HOWEVER SO HELD (i.e. including computer diaries / notes / electonic post-its etc). It is truly amazing, even shocking, what can turn up in response to such a request. And, the max charge is £10. Anecdotally, I am aware of several cases where DWP (and LA) denials of the existence of documentation/knowledge has been demonstrably proven to be, ahem, "mistaken".

There was a commissioners comment along the lines that Tribunals should be wary of accepting that the assertion made by a LA that the fact they had no record on their computer system of a letter being recieved was conclusive proof that no such letter had in fact been recieved but I am afraid I cannot remember the number.

R(G)2/06 is quite informative (although probably not very helpful in this case) regarding forms that were posted but not recieved

CSB/347/83

think its this decision which discusses computer records in overpayment appeals.

Thank you all for your helpful suggestions. In particular CSB/347/1983 looks very promising.

I always use CSIS/0345/2004. It cites CSB/347/1983 and CH/0609/2004. Used it successfully again yesterday.