Hello,

I am currently working with a client who was receiving DLA care at the middle rate and mobility at the higher rate. My client suffers froma progressive illness that results in a limited useage of her limbs - making walking difficult and self care at home difficult.

This customer received some injections to help relieve the effects of the disability, but this help only lasted for 3 weeks. After that the customer was back to square 1. The DWP observed the customer walking 'normally' during this period. Some eight months later they interviewed my client under caution and a new decision was made stopping her award and creating substantial overpayments.

I have a few concerns / questions that I would appreciate comments on...

Firstly, an 8 month delay in the investigation seems excessive to me - all of this time the claim was in payment, so the DWP were contributing to this by not suspending the claim. Should the claim be suspended? If so, as they didn't do this, can I look at questioning the recoverability of the overpayment??

As the effects of the treatement only lasted for 3 weeks, this is not a substantial change which in my view would stop someone getting DLA. I am in the process of obtaining medical records to try and demonstrate that the improvements witnessed by the DWP were only shortlived. Does anyone know of any case law that I could use?

It is difficult to get all of the information down, so I will leave it there for now, but will expand on the above should it raise any questions in your head!

Any help would be much appreciated!!!

Lee

On the face of it, the facts to this sound so straight forward that I can't beleive that even the DWP would make such a monstrous decision. With supportive medical evidence you should be on to a winner in respect of hte entitlement decision. I can see a few potenital pitfalls, although they are only academic concerns at the moment.

Worst comes to worst, even if you failed on entitlement the o/p should not be recoverable, and in response to your question, yes, failure to suspend can be classed as official error. Appeal and see what arguements the DWP are using and then post again. Make sure you get a copy of the IUC and, assuming the claimant recounted the story as you set out in the IUC, find out what steps the DWP took to obtain further medical evidence. Be wary of giving anything away if the DWP are still considering a prosecution.

When the case got passed to me the customer had already lodged an appeal. I have a copy of thre IUC, it seems that they are not going to be considering a prosecution. Howedver, the DWP are saying that although they accept that the customer had injections that resulted in an improvement to her health, they feel that even so, the claimant still does not satisfy the conditions.

Inj the IUC it appears that the interviewing officer kept cutting the claimant off - they would ask a questions, such as can you do your washing and the customer would say yes - before being given a chance to expand on this answer they were onto the next one - the real story is yes but.....

As a result, the IUC isn't particularly supportive to the claimant. However, I am hoping the medical evidence will back up what my client is saying is the true story.

I would be interested to hear more about your accademic concerns. I have read through the IUC - which took in excess of an hour and it doesn't appear that the customer was given an opportunity to have a break, although she was reminded that she was free to leave at any time. Again, this seems somewhat unfair to the claimant as she was quite nervous and scared by the whole process.

Have a look at the notes to section 72 of the contribution & benefits act in Bonner. Specifically at the notes on "any period throughout which". It contains case law which should be helpful.

David

I had a similar case this year (2 x IUC transcripts to wade through) and all sorts on dubious assumptions in the DWP submission, mixed up identities, etc. and an overpayment recovery request. In the end I decided that the full GP record (seven year's worth) was the most powerful and factual tool to use. Mostly won the case - LRC restored, but HM wasn't, but no recovery. Although it was possible to trash the DWP submission in any number of ways, reading between the lines of the full decision it was clear that what did the trick was the full medical record. It was the one thing out of the very large bundle which the tribunal could get their teeth into.