We have had a direction from the Tribunal judge on a HB overpayment case (official error but Department stating that client should have known………….). In the letter of appeal the claimant stated that “I disclosed all the information to you at the time my claim was made, I don’t understand all the complex rules and calculations of benefit and the overpayment is your fault.” So far, so good. All we have to do at the Tribunal is to consider regulations 100 and 101.

However, this appeal has resulted in the Judge asking for a written submission stating that “If he (the claimant) wishes to argue that he does not have the mental capacity to understand the award letter then he will be expected to provide medical evidence or other evidence in support of that assertion. It is generally accepted that those who have the capacity to claim the benefit have the requisite capacity to understand what follows thereafter”

Just two comments / questions

1 This statement suggests that if a claimant doesn’t understand “the complex rules and calculations” they lack some sort of mental capacity that they must produce evidence of. (Cue request to GP for a letter asking for quite reasonable gentleman to be labelled mentally deficient)

2. Where does the evidence exist that suggests that “It is generally accepted that those who have the capacity to claim the benefit have the requisite capacity to understand what follows thereafter”


Anyone have any idea how this reasonable direction can be followed?

Before doing anything you should read CH/2935/2005.

Thanks Paul

A good decision, especially paragraphs 34 to 37. We have already considered many of the points raised by Deputy Commissioner Mark. Do you know if this view been challenged by a higher authority?

From the direction we received from the Judge, I just wondered where he might have got the view that "it is generally accepted that those who have the capacity to claim the benefit have the requisite capacity to understand what follows thereafter"

Seems a strange statement for someone to come up with unless it is referenced somewhere. does anyone recognise it from an existing Commissioners decision or Court decision?

As ar as I'm aware the CD has not been criticized by another commissioner or higher court.

Capacity to act/contract, etc is usually presumed at common law unless rebuttable on the facts or evidence in any particular case. What the commissioiner has done in that case is to lay down some parameters in which these kinds of cases can be analyzed.