My client (64yo lady) rang the Pension Service last year but didn’t know her NINO. They kindly offered to find out what it was and produced a NINO six months later in November 2009.

A few weeks later she received a demand for £1244.99 from Debt Management. She had no idea what this was about so rang them to ask for a written explanation. But she just received two more demands from Debt Management. She then sought help from the bureau; an adviser rang the Pension Service and persuaded them to provide some information. This turned out to be a decision letter dated 1978 alleging cohabitation whilst in receipt of widow’s benefit for a seven month period.

The client denies both cohabitation and receipt of the 1978 letter or any other letter regarding this issue and so appealed. We now have a direction notice from a Tribunal Judge seeking “all relevant information and documentation” to decide whether to allow the appeal.

I don’t see how we can appeal the 1978 supersession decision but maybe we can appeal the decision to recover? Or have they made an error in not sending further letters (they admitted on phone that only one letter was sent)? Or is there a statute of limitations on recovery?
There must be a connection with the missing NINo I think.

Any help or suggestions would be very welcome - Pete Rothery Scarborough CAB

If this is the first decision on recovery, you can certainly appeal recoverability. I think the Dept will have an uphill task though. They are going to have to prove:

- that there has in fact been an overpayment of benefit;
- how the amount of the overpayment has been calculated; and
- that the overpayment arose either from misrepresentation or a failure to disclose.

One of our cleints recently won a big overpayment appeal (about working while claiming IB - and I mean big) becaue the Department could not produce ANY records from the relevant period and the client insisted that she ahd told them (as well as telling the ATOS doctor at three medicals over the period). Similar direction on adjournment, no documents.

Result: department failed to prove that she didn't tell them, and the Judge found her evidence credible.

What chance do they have of proving ANYTHING so many years on?

i'd be particularly interested in how they calculated the the overpayment - widows pension/WMA (personal) was £17.50 a week in 1978, increasing to £19.50 in November of that year...

DWP need to produce the form LT 54, to show the signed decision of the national insurance officer, which reviewed the widow's benefit award, determined the period of disqualification for cohabitation, and decided that the CLAImant failed to exercise due care and diligence.

i agree with ariadne - DWP are totally pwnd. : -)

Pete

Your post says you've received directions on whether to "allow" the appeal. Is this maybe whether to admit the appeal.

It seems to me that if you've had the appeal admitted then the chances are that the DWP will stand next to no chance of proving the recoverability etc. for the reasons the others have stated.

BUT, if the DWP can prove that they sent the necessary decisions to your client 30 years ago and she didn't bother to appeal then you could have a problem as no late appeal would be allowed.

Do you know what evidence, if any, the DWP have that the relevant decisions were made and issued in 78? I would be pushing for proof of posting given that your client has denied receiving the decision and something has obviously gone seriously wrong with the administration here.

David

Re: statute of limitations on recoverability.

I (handily) read today that there was a decision made in November 2009 that the statute of limitations rules WERE applicable in cases like this where recovery has not previously been sought. The case is Joseph v London Borough of Newham (2009) EWHC decision number 2983.

This conflicts with previous decisions that the statute of limitations doesn't apply and is surely worth a try!

Mairi