I'll keep this short, otherwise it'll be a major rant...

Is anyone aware of any caselaw that considers if starting work is a reportable change of circs for DLA?

As far as I'm concerned it isn't, and regularly give this advice in writing, but client has been invited to an IUC to answer this question.

Thank you.

CSA/114/90 and CDLA/2160/2003 cited by Neil Batemen at:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=100&topic_id=6436&mode=full

I’m sure there are others also.

Thank you Paul. Much appreciated.

Depends on (a) the work and (b) the award; but not per se. And even if there are grounds to supersede, not necessarily fraud, especially if there has been a long slow recovery unnoticed by the claimant. I'm assuming your client hasn't done anything silly like refereeing football matches while claiming HRM?

My view is that starting work can NEVER be a relevant change of circs for DLA since no type of work can change the amount of help a client needs. Yes, the work may well give an indication that the needs have changed, but it is the changing needs that is the relevant change not the fact of starting work.

There will be cases, such as those suffering from a mental health problem, where work increases confidence, esteem and motivation with a corresponding decrease in care needs, but still, it is the change in those needs that is the the relevant change, not the fact of starting work.

I'll be attending the IUC and am much looking forward to hearing what the investigating officers have to say about this.

The problem we see all too often at IUCs is that the original claim pack details substantial mobility and care needs, 7 days per week, which cannot stand up to any sort of comparison with how the client fares in the work environment. It is, therefore, very easy for the interviewing officers to read out the contents of the claim pack, and query whether the claimed level of need/restriction has changed, and correspondingly difficult for the client to say that it hasn't. Of course, most clients cannot remember exactly what was said in the claim pack, and what the DWP requires you to report is suitably vague - at one hearing, where a person had said on the claim pack he could only walk about 10 metres without severe discomfort, the presenting officer could/would not say at what point the Department would have expected the client to report a change - 15 metres, 20 metres, and so on, notwithstanding that these were significantly higher distances as a percentage of the original. Of course, that is because assessment of walking ability is so wildly inaccurate (by medical advisers and clients alike) that such statements often do not stand up to analysis in the first place, but having formed part of a claim form that is "correct and complete" (as declared by the client),are used against the client whenever alleged "fraud" raises its ugly head. My advice to a person on DLA who asks about starting work is always to consider carefully whether there has been an increase in mobility or reduction in care/supervsion needs, and report if there has been such a change. The role of the local JCP staff is also relevant here - all too often the Disability Employment Advisers will draw up "better off" calculations taking account of continuing entitlement to DLA, advising the clients that they are still entitled to DLA because they are "disabled". From cases seen here, the DLA fraud staff and decision makers seem to feel that this is irrelevant, because the client should report improvements to the DLA Unit, but you can't help but agree with clients who believe the local staff would advise them correctly (and point out that improvement in mobility/care needs must be reported to the DLA Unit, if applicable, so that "better off" calculations carry a certain "health warning")

Brian (i.e. not the senior adviser)

Is it a 'Sledghammer to crack a nut'?

I agree, starting work is not a 'relevant change of circumstances' in itself.

An IUC to answer this question?

If IUC's are being conducted with no, or little evidence, at the drop of a hat, shouldn't these types of interview be questioned (they are fishing trips) and should claimants be 'interviewed under caution' if there is no reasonable prospect of conviction?

I agree entirely - but it's the age old question of 'who polices the police'.

At the end of the day, the perception that I receive regarding
all this is that it's about squishing the little people - and from what I see, the DWP are particularly adept at that activity!

At the same time, they are even more adept at cocking things up themselves, sometimes deliberately, and it makes me so angry that they are, or seem to be, virtually unaccountable.

Having been involved with a number of these cases over the last few years,
I can only concur with Tony's comment about 'squishing the little people',

One part of the DWP awards contracts to private sector companies to faciliate employment support programmes (although according to the current edition of Working Brief, contractual targets are woefully adrift). Having taken up employment - no easy task in itself, the unwary DLA recipient is then rewarded with an IUC from another part of the DWP, followed up later with an overpayment recovery demand for thousands of pounds.

Needless to say, the victim tells everyone in their cohort about their experience. Result: a total lack of trust in the system and a clear warning to others to steer clear of work. The urban myth machine is wound up a few more counter productive notches.

DWP policy makers can resolve this problem but choose not to. Is this because they are more interested in making examples of the 'little people' in media 'fraud' stories?

I agree that starting work is not a change of circumstances and should only be reported in the context of a possible improvement in care or mobility needs.
I would like to say with regard to clients with mental health problems having a change fornthe better when starting work is not always the case.I have several clients who work inspite of their illness and have a high level of need in the workplace infact possibly more so.They also have reasonable adjustments in place to maintain them in their jobs.
Sorry to be picky but just thought i'd point it out.

Hi
Yes directgov.do say you can work and claim DLA and so does the claim pack.
The way I interpret it is that a client should only inform the DWP of starting work if there is an improvement in care or mobility needs which is a required change of circumstance.If there are no changes then there is nothing to report.It should be remembered that there is often an increase in care and/or mobility needs when starting work too.It is always a good idea to check that the client can show how needs are met in the workplace.ie.reasonable adjustments,help and support from colleagues and preparing to go to work in the morning,in case of any query.
Hope this helps.

Thu 07-May-09 12:11 PM by shawn

(Edited to shorten link)

It is mentioned on DirectGov that one can work and claim DLA. Does that mean that work has no relevance to DLA claim - unless the claimant becomes a pilot or a labourer or something like that.
Mr.Sanatkumar Dave
Welfare Rights Officer
Tameside Metropolitan Borough Council
Council Offices
Wellington Road
Ashton-under-Lyne
Tameside OL6 6DL

Tel: 0161 342 3494
Fax: 0161 342 2168

Work is only relevant to DLA if the nature of the work is incompatible with the degree of disability claimed. The problem is the gradual recovery where people may genuinely not notice that they are getting better over a period of months or even years.
If the pDCS becomes aware that a claiamnt is working, they will be intereted in it for this reason. Most of the cases I have come across have been old awards of higher mobility, where there is an argument about how much walking is needed to do the job.

Just to add my twopennworth - prob only worth a happorth now - difficult times and all that and don't get me started on the euro-to-pound rate for my hols....

The Disability and Carers Service now include with their award letters (and it was around a year ago this matter last arose for me to take a detailed interest) a very clear (large print) list of changes of circumstances they need to know about - and starting work or returning to work is one of them.

Yes we all know you can work and get DLA, however the notifiable change is something you weren't doing at time of claim - (not that the claim form collects info re current working status) - and the DM will use that as a guide to indicate a possible change of condition may have occurred.

Thereby you tell em you are now working; that enables them to send out a claim form to check your needs remain the same or to enable them to supercede an award - I have had a client who just as his DLA award of MRC HM was nicely logged and closed, rang to say starting work - I advised should inform but we completed new form indicating the difficulties faced (some more than at home) in managing personal care - and award remained the same.

I know of the letter concerning changes of circumstance and it says if there is more help needed at work or if there has been an improvement in condition which means you may be starting work then this must be reported.This has always been the case and any changes in care/mobility needs should always be notified to DWP.
However if there are no changes in a client's condition or needs then there is nothing to report - I asked Blackpool about this and thay confirmed it(not always gospel I know).

In my experience I've found that proof of a change of circumstances is derived by the DWP or tribunal using evidence (including Intreviews Under Caution) which includes statements and measurements concenring a claimants various care and mobility needs perceived by colleagues at work. When this is added to personal disputes, a condition which varies, a claimants own perpsective on the changes they should have reported this makes it easy for the DWP to show there is a good case to say a change in circumstances should be reported

The saga builds...

I've received a letter from a benefit fraud investigator which contains the following paragraph:

In reply to charges put to her (your client) has stated that she did not report the work to the DLA unit because she had been told by you that DLA would be unaffected as it was not means tested. Of course, this advice is not entirely correct.

I have a fair idea how I intend to respond - after I've consulted my manager and the client's solicitor, but I'm interested in how others might respond to this.

Please reply with suggestions, serious or otherwise

Dear sir

My client is completely insane and I wash my hands of her altogether.

Yours truly
Mickey Mouse

p.s – see ya in Queens Arms later!

Hey d***head

If you really think I’d leave that advice unqualified then you’re quite obviously a raving lunatic. Any further correspondence along these lines will result in libel action being taken against you. Now sod off and bother me no more

Yours affectionately
A .Litigant

Seriously, it isn't libel if it is only said to you - it has to be "published" to a third party, and not by you, eg on rightsnet to people who wouldn't believe it anyway.

Your client may well believe you told her this. But then I recently met soemone who swore that his doctor had told him half his spine had disappeared and the rest would follow and then he would have to be fitted with an artificial one...

Doctors, lawyers and advice workers know that people hear what they want to hear. This is why lawyers ALWAYS follow up all advice in writing so that there can be no argument about it later. Or negligence claim, for that matter.

It was said to the client during her IUC whilst her solicitor was present and she reported it back to me the same afternoon. Nothing new there, but I was very surprised to get it in writing.

I was not in the last offended - quite the opposite in fact. It will, I hope, aid the client's defence and it demonstrates, yet once again, that the system is administered by those who don't know what they're talking about and the overwhelming unfairness of placing too high a burden on claimants.

As to my advice, it was spot in and confirmed in writing.

Tue 04-Aug-09 10:58 AM by Tony Bowman

There's been a development on this case.

The client's DLA has been ended from the date she started work using "evidence gathered from the fraud investigation service".

The supersession decision states: " the grounds...are: mobility and care needs have improved to such an extent that she felt able to start working as a care assistant with duties not consistent with the need (previously advised) in 2007".

Naturally, we disagree - not least because the last decision made on client's claim was only last year (not 2007), shortly before she started work, and was supported by medical evidence. But also because DLA is not an incapacity related benefit and there was no attempt by BDC to establish what the curent care and mobility needs are and exactly what the client's duties involve and how consistent or otherwise those needs are with those duties. As mentioned above the fraud investigation officer was wrong in thier belief and that adds to the inaccuracy of this decision.

We obviously intend to appeal. But here's the question:

If we go along the usual lines we'll have to submit a new claim and then link the appeal on the inevitable refusal to the appeal on the supersession. This will result in the tribunal considering fully client's care and mobility needs but not making a substantive finding on the legality of the grounds for a supersession. Even if there is no new claim, the tribunal will still focus on the care and mobility needs. But I don't want them to do that because doing so will only give credence to shoddy DM standards and will encourage DM's to continue to give shoddy decisions that are unsupported by evidence.

I've used this approach many times in tribunal for all sorts of cases but tribunals always go on to consider the entitlement question and make a decision on that basis. I'm fed up with this becuase as I've said it gives credence to poor decision making. I'm thinking of suggesting to the client that we confine the appeal (in tandem with a complaint) to showing that grounds for a supersession have not been made out and to make a new claim but resist pressure to have the two appeals linked.

So, on the supersession appeal:

- Do you agree or not that the proper grounds have been made out by the DM?
- Assuming that we show the DM has not made out proper grounds, can a tribunal legitimately uphold the decision if the client doesn't give care/mobility needs information (no doubt they will assume the worst)?
- How is the UT/Commissioner likely to respond to this approach?

Thanks all very much for any contributions.

It's undoubtedly a difficult one - I've had a couple of cases very similar to this. In the most recent, the new claim dilemma didn't arise as client had been awarded HRM and LRC and had turned 65 betwixt initial award and supersession decision.

There's always the chance that the DM will make a better fist of making out grounds when it comes to their sub to the tribunal - I'm assuming you've not got a transcript of IUC yet and of any other evidence they might wish to rely on when it comes to the hearing? I'd hold fire on what approach to take until I'd seen the full case they intended to present. Again, it probably sounds like I'm telling my granny how to suck eggs when I say this, but don't overlook the possibility that there may be sufficient in the DWP sub to at least call entitlement into question, even if the DM makes a hash of the sub - the tribunal would then be able to look into entitlement regardless, leaving you high and dry if you've not got the evidence up your sleeve to address that issue yourself.

One approach might be - and this would only work if the DM sub doesn't make out grounds for supersession and you're certain that the papers don't throw up evidence that goes to entitlement - to present your sub to the effect that grounds have not been made out and simultaneously apply to the regional or district judge for a direction (my own recent application for the same ended up in a half-day directions hearing, but that's another story) that the tribunal confine itself to the question of whether grounds for supersession are made out. Ask for a direction that a distict/deputy-district/regional judge sits alone to determine that issue. Obviously, the department will get the opportunity to respond if you take that approach and there's the risk that they may then make a better job of things in any additional sub they present. But you then at least have the advantage of knowing in advance whether the tribunal is going to be able to look into entilement - and you may well get the direction you're after and a hearing in front of a tribunal judge sitting alone.

I doubt the argument will be taken as there are bits of law that are beyond our realm that would drive the judge onwards.

"....I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgement of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but ones it is proved it vitiates judgements, contracts and all transactions whatsoever; see as to deeds....... So, here, I am of opinion that if this declaration is proved to have been false and fraudulent, it is a nullity and void......" ( Denning LJ).

With the above in mind I'd have thought that the whole award was up for inspection in the full light of 'justice' and not just the bits of social security law that we deal with.

Quite possibly. But there's only been a fraud investigation. As yet (at least going by what Tony has posted) there's been no prosecution for fraud, much less any conviction.

I understand that there has been no succesful fraud prosecution.

That though would not dissuade any court (not my assertion) from looking into the matter.

The DWP are the ones bringing fraud into the case.

....The court is careful not to find fraud unless it is distinctly pleaded and proved....

I'd have thought that with this in mind the tribunal would be minded that the DWP are pleading fraud, and with this in mind pursue the entitlement issue as part of the grounds for supersession.

Obviously a tribunal could never find anyone guilty of anything, they only find upon entitlement. I would not have thought though that they would ignore the 'bigger picture.'

Simply, if the DWP allege fraud then the tribunal would have to look into the grounds of entitlement. If there is entitlement then there can be no fraud and the tribunal would say so.

I'm not saying what is right or wrong but I'd have thought that this is the question of this particualr case.

Maybe it could be argued that the fraud should be proved before the tribunal can consider entitlement and therefore only the grounds for supersession fall as the question for the tribunal to resolve?

The tribuanl could adjourn pending the prosecution case?

It's maybe as well to define our terms - or at least the terms I'm using.

Investigation for fraud - what it says on the tin.

Allegation of fraud - a formal prosecution for that offence or, at the least, the offer of an administrative penalty to the claimant. Even such an offer should be treated with caution, as I've had more than one case where the claimant's refusing to accept the penalty has led to the fraud case being dropped.

Insinuation of fraud - an entirely underhand attempt by the department to suggest criminal activity on the part of the claimant during civil proceedings when no criminal prosecution has been initiated. This is, sadly, not uncommon and in my view should be dealt with by a forcibly made suggestion that the department either spit or cough. Any half-way reasonable tribunal will take a very dim view of such a suggestion, particularly if the rep draws it to their attention.

In the absence of a conviction for fraud or the claimant's accepting an admin penalty, there is absolutely nothing to be inferred from the fact that evidence in a civil case was garnered during the course of a fraud investigation. This is even more so when the mere fact of claiming DLA whilst working cannot found either a criminal or civil (non-entitlement) case.

Wed 05-Aug-09 04:08 PM by Tony Bowman

Past Caring 2 - thank you for your replies. I will certainly consider proceeding along the lines you suggest - which is exactly what I was looking for.

John - thanks also. I don't disagree with what you say but the issue is not so much the mention of fraud, which you can disregard really, but the evidential basis for a decision. Look at it this way:

There is no evidential basis that the client's circumstances have changed yet her DLA is removed. Client can challenge the decision on two grounds:

1) that she remains entitled to DLA and meets the relevant criteria (with all the work that that involves); or

2) that the decision must be overturned becuase there was no basis in law for it.

If the tribunal only considers the ground at 1 - which is always the case, then the DLA unit are given a free hand to flout the law knowing that they don't have to make a reasonable, well-founded and lawful decision because the tribunal (or no-one) will deal with it for them. Of course, they do this whilst at the same time continuing to blithely victimise and hound claimants with allegations that they do not meet thier own responsibilties!

If a tribunal allows an appeal on the ground in 2 then the DLA unit is free to reconsider the issue and reach a proper decision according to the regulations and the proper consideration of relevant evidence. Then, and only then, should a tribunal consider the ground in 1.

The difficulty I have is that the perception that all claimants are cheating lying scheming fraudsters and if we decline to provide evidence of the criteria it's likely to be looked upon unfavourably. I'm seeking help to avoid this.

Thanks again,

Also, even there had been a conviction, see paragraph 8 of CH/1820/2006 where it was held that “... in deciding this appeal, I am not in any way concerned with the success, or lack of success, of any criminal proceedings. Nor am I concerned with arguments that may have been advanced in that litigation. ... the important point is that entirely different considerations apply where an overpayment claim is appealed to a tribunal.” Similar reasoning was applied by the Court of Appeal in the case of Secretary of State for Work and Pensions v Mote.

I do understand the argument here (well i thought I did.)

In SoS supersession cases i've known it to be succesful to argue no relevant change of circumstances.

Usually this means dismissing the new EMp report or an Incapacity benefit report.

In this case I thought that the relevant change of circs was not so much the work but the job itself.

If the DM was saying started work as oooh dunno Call Centre operative then maybe there would need to be a further investigation ( could arguably be said to be unwarranted) into those duties.

In this case

"The supersession decision states: " the grounds...are: mobility and care needs have improved to such an extent that she felt able to start working as a care assistant with duties not consistent with the need (previously advised) in 2007."

Care Assistant Job Description (taken at random from google.)

Duties will include;
• To provide support to help people live more comfortably
• Aiding the qualified staff with general care assistant duties
• Making the patients more comfortable on a day to day basis.

I would have thought that these duties would indicate, subject to the award in place, that there maybe a relevant CoC.

Thu 06-Aug-09 12:04 PM by past caring 2

But we've no idea what this claimant's disabilities and resulting care needs are. Off the top of my head I can think of a number of disabling conditions for which someone may well have quite considerable care needs and that would be no automatic bar to their being capable of performing the duties in the care assistant JD that you quote;

- learning disabilities

- eating disorders

- self-harming

As far as I'm aware the DWP made no enquires into the nature of my client's job so have no idea what her duties are and whether those duties (which are not what one might assume are the duties of a 'care assistant') are consistent with the claimed level of disability.

That level of disability was acknowledged by a decision on a supersession increasing DLA entitlement five months before my client started work and was supported by a factual report from my client's mental health professional, a GP letter, a claim form and a detailed letter prepared by me based on meetings with client.

Client was not asked to complete any type of claim form or anything similiar before her award was reduced.

To my knowledge, the IUC tape has not yet been typed up (at least client's solicitor doesn't have it yet) so there is nothing in that. Incidentally, I was at the first IUC and no care/mob needs discussed (although the client's fragile state of mind was well demonstrated) and at the second, which I didn't attend, I understand that a prepared statement was read by the solicitor followed by a 'no comment' interview.

To my knowledge, the decision is based only on the say so of the fraud officer who - as detailed above - doesn't even understand that most basic fact that DLA is not a means tested benefit.

Given what I know already - which (aside from the client's job duties) is no more than I've posted here - I can see no evidential basis or reasonable justification for identifying any changes in the claimed level of disability, and this is the reason why I would like to proceed as stated.

If there had been even the tiniest change identified by the DM I doubt I would rely solely on this approach although I would undoubtedly approach the subject in my reps to tribunal.

"...the fraud officer who - as detailed above - doesn't even understand that most basic fact that DLA is not a means tested benefit..."

Its that thing of how different people read text differently.

The quote above was "In reply to charges put to her (your client) has stated that she did not report the work to the DLA unit because she had been told by you that DLA would be unaffected as it was not means tested. Of course, this advice is not entirely correct."

I read it as the DWP explaining that as DLA is not a means tested benefit it does not mean that there is no requirement to report the work done.

Is it known that the DWP have no idea as to the claimants duties?

""...the fraud officer who - as detailed above - doesn't even understand that most basic fact that DLA is not a means tested benefit..."

Its that thing of how different people read text differently.

The quote above was "In reply to charges put to her (your client) has stated that she did not report the work to the DLA unit because she had been told by you that DLA would be unaffected as it was not means tested. Of course, this advice is not entirely correct."

I read it as the DWP explaining that as DLA is not a means tested benefit it does not mean that there is no requirement to report the work done.

You are quite right of course. In reply I say that we have an excellent teacher - the benefits system - in how to read the most negative interpretation into everything we hear. (I haven't always been a cynic you know... )

Also, as discussed in the earlier part of this thread, it's my belief that there is no requirment to report the work so even if that were the intended meaning, which I don't believe is the case, it would argue it to be incorrect.

Is it known that the DWP have no idea as to the claimants duties?

As far as I know but I cannot say for certain. If they were aware of the client's duties it would be even more difficult to justify the decision. I know you'd like to know what those duties are but I don't want to post in this forum. Suffice it to say they are very light and involve no manual work at all and nothing that will cause any significant stress (although client is currently off sick as her mental state cannot handle the 'office politics'!!).

By the way John. Thank you for engaging in this debate - your contribution has been very helpful - as has all the others.

As I said....

"...subject to the award in place... there may be a relevant CoC."

If the duties are not a relevant change of circs then you could argue that the SoS hasn't discharged the burden of proof as to the supersession and the original award stands.

In the scenario you argue that may be the case.

I've had a small number of these cases and (assuming there is legtimate entitlement) always make a point of looking very carefully indeed at the actual tasks undertaken by the employed person which may differ quite a lot from the job description.

One such person was, indeed, a care assistant who recieved a massive O/P recovery demand (£18k I think) after the threat of prosecution was dropped .

There was a lot of evidence to demonstrate that she could not actually carry out the required tasks. For example, in one job she was sacked. She then undertook several other short term jobs which again she struggled with. All the job titles suggeststed an improvement for DLA purposes, but in reality she was getting help from other people to complete many of the tasks.

The most interesting aspect of that case was when I sent a copy of the (current) employer's 'witness statement' (taken by the counter fraud officers) back to the same employer. Surprisingly, and on reflection the employer wrote a new statement for the tribunal disputing the way her words had been distorted, including the fact that she had felt under enormous pressure at the time of the interview. There were about 4 A4 pages which went into detail about how the employee struggled in pain on a daily basis. I also submitted the sickness record. plus ots of other stuff, all of which the DWP could have obtained, but didn't for obvious reasons. Case won, although high rate mob was not reinstated, low care was. No overpayment. The DWP bent over backwards to 'get a result' even trying to bring a former employer to the tribunal. It was a classic example of the state acting as bully in an ugly and unaccountable way.

These cases are the best possible adverts to scare people off work. The real fraudsters will carry on regardless.