This is one thing that should be straight forward! However, maybe I have just been unlucky so far...

I requested proof from DLA in Oct 09 of a previous award of DLA and the reason for it stopping (claimant was getting MRC & LRM for epilepsy from at least 2004 but had a stroke in Feb 09 and the payments stopped, possibly as a result of hospital admission). We need this proof as HB have notified the claimant that he has an o/p of HB/CTB from 06-09 as his was not getting any DLA, a decision the claimant disagrees with.

Since Oct 09 after putting my request in writing, I have been calling DLA at least once a fortnight and the latest I was told last week was that as the claimant has since reclaimed DLA (August 09) all previous records have been "dissolved" under data protection and that his file when recalled only holds his current claim!

I have obtained bank statements for HB showing his combined payments of IB & DLA for part of the o/p period but Hackney Council will not accept these as the claimant might have been o/p DLA (refusing to accept a letter from DWP citing no o/p of any benefit).

I am hitting my head against a brick wall - the claimant only has his old 2004 paying in book and Hackney Council are being stubborn.

Does anyone have any ideas or know of who I should contact at DLA to get this proof? I always thought that info is kept for 6 years before being destroyed and is kept in off site storgae?

OR, any memo or caselaw where HB has to accept bank statements when there is no other evidence? (have checked Hackney HB forms and the advice is for entitlement letters only...)

Thank you
Jo

Hi Jo.

Just a thought... Have you tried contacting the DWP in relation to his IB claim, and asking them for copies of his benefit claim for the period in question? Surely this would show all of the premiums client was entitled to, and a breakdown of how they had calculated this.

Confused as to how Hackney Council can use the "he may have had an O/p of DLA" -do they know something that you don't? Or can we all use the "may or may not card" now!

Regards

Jackie

Am waiting to hear from Hackney DWP...fingers crossed. However, it was them that told HB that he was not getting DLA. It is incredibly difficult to get to the bottom of what is actually going on. How could DLA be overpaid (if that has happened) for over 3 years!

Jo

Hackney should know better. A claimant cannot be expected to produce something that cannot physically be provided. The reason that, of all LA, Hackney should know better is because they have already been told this by a Commissioner - R(H) 1/09.

In that case, Hackney asked a clmt to provide self-employed accounts that simply didn't exist. Deputy Cmmr Humphrey made it clear that where evidence of a particular type doesn't exist, the LA must consider the evidence that is actually available. I can see no good reason why the same principle(s) wouldn't apply to other types of income / capital.

If Hackney still won't budge, and assuming the situation is as stated, this *should* be one of the easier appeals to deal with. In my view, Hackney is being "Wednesbury" unreasonable.

See R(I)2/51 R(SB)33/85, CP/3037/2004, and Kerr v Department for Social Development of Northern Ireland (HL) (Reported as R1/04(SF)]

CP/3037/2004 and R(SB)33/85 followed R(I)2/51 in holding that there may be circumsatances where a claimants uncorroborated evidence can be accepted.

The House was a bit more sophisticated in Kerr in holding that a case must be decided on the evidence available. Baroness Hale said the following at paras 62 and 63 of the appendix in Kerr:


"62 What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met . The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced

63If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, “a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn.” The same should apply to information which the department can reasonably be expected to discover for itself. "

There is noting to stop Hackney Council from asking the DLA unit to confirm the rate of DLA paid. (See HB Regs 108-112)

Dont forget that Reg 93 makes a payment on acount mandatory within 14 days of a cliam being received, if it is impractcable to decide the claim and that impracticability does not arise out of the claimants failure without good cause to provide evidence that the LA has requested.

A claimant cannot be exepcted to provide evidence that he simply does not have access to, and so it goes without saying that he would have good cause for not providing it.

If on the other hand, the LA makes a decision on the basis of advers assumptions thathave no basis in fact, it ought to be a simple matter to appeal it.

Agree with above.

The council are being unreasonable.

You can bet your bottom dollar they'd belive the bank statement and take action to reduce benefit if it showed some undeclared income or unknown transfers!

Since writing this, the case has developed into avenues I couldn't have dreamt up.

We cannot get proof from DLA as files have been destroyed but apparently in law they keep the decision notices so I've requested those.

In the meantime, Hackney DWP (client was paid combined IB & DLA) have emailed to say that there is an overpayment of DLA but their file is in transit to their off site storage facility and have no idea when it can be retrieved. The o/p hasn't yet been sent to debt management and the only "proof" of any o/p is a note reading "Telephone call to DLA . No DLA interest. Customer Information System shows DLA ended 29/08/2003. Overpayment from 30/08/2003 to 01/06/2009 referred to Debt Management".

Where does this leave us with the o/p and HB?

An overpayment of DLA in these circumstances can only arise is there has been a valid revision or supersession on entitlement that has been properly notified.

It will be an appealable decision.

Any outcome overpayment decision is similarly apealable

In short, if the decisions on entitlement and the overpayment decisions have not been notified they are of no effect.

I agree with Stainsby on supersession point, but also any overpayment of DLA will only only be recoverable if it arose through misrepresentation or failure to disclose a material fact by the claimant (s 71 of Admin Act).

It's not clear what happened here, but it may be that IB continued to pay DLA for years after it stopped through some sort of administrative mix up and, if that was the case, overpayment wouldn't be recoverable.

As to HB, could argue that no overpayment: paras 13 and 14 of Sched 3 to HB regs says that eligibility for disability and severe disability premiums depends on 'receipt' of qualifying benefit and cl was 'in receipt' of DLA. This would be much harder to argue if said 'entitled to' but it doesn't.