A customer suffered a severe stroke last year and was admitted to hospital in December. He had been in receipt of HRMC/MRCC of DLA and subsequent DP/SDP. His sister notified Blackpool in January that he had been in hospital for almost four weeks in regard to his DLA.
She did not notify the local office which was paying the IS premiums.
Subsequently, he was admitted to permanent nursing care and she sent letters to all the offices concerned to notify them of this.
Notification has now been received that there had been an overpayment of IS by some £500.
His sister notified Blackpool not due to her knowledge of the system but because she had to do this a year earlier for her father and assumed, wrongly of course, that everyone else would be notified.
She was not the official Appointee at the time. This only begun several weeks ago.
Any pointers that she can argue will be gratefully welcomed.

Firstly, she was not an appointee at the time - secondly she did the right thing at the right time and notified DLA: in addition did she know about any additional premiums or that they were being paid by a local office? I doubt it.

It's my understanding that there is now an electronic notification system set up between the DBU and the local BDC's which is supposed to notify them when a person is awarded DLA or comes off it.

Even if her brother did know about the premiums and the local office, he was in no position to notify anyone of anything. In the circumstances any attempt at recovery would be totally out of order. She should write to the DBU - outline the facts and request that recovery not be enforced.

As she wasn't an appointee at the time she was under no obligation to do anything. The obligation lay with the claimant. That obligation can be attributed to an appointee or receiver, but not to anyone else (unless they also benefit).
Recovery is only legally possible against him.

Tue 16-Jun-09 01:06 PM by Tony Bowman

As much as I would like to sympathise with Mike's comments I don't think it'll be quite that easy since there is an obvious failure to disclose (wholly innocent failures still count).

if you have a copy of CPAG's Social Security Legislation, vol III, turn to page 66 and read from sub-heading (b) disclosure to whom... which goes into the "Hinchy" case - a set of circumstances not too disimilar from those in your client's case.

Hinchy was decided in 2005 and the case would have begun long before then so Mike's observation of electronic reporting may be crucial in challenging the decision. I've only skim-read but if I've got it right the appeal in Hinchy concerned non-disclosure of the ending of DLA to the IS department. At the time, the DLA unit sent postcards to local offices. It was argued, in line with current principles, that a claimant cannot fail to disclose something that the SoS already knows. The conclusion was, in essence, that SoS's left hand doesn't know what his right hand is doing. In other words, it's not open to the claimant to make assumptions about what action the department should taking.

However, if it is indeed the case that automatic notification is sent elctronically then there might be scope for arguing that Hinchy doesn't apply because it can be shown that the proper department (local office (or left hand)) was in posession of the information, which would bring you back to the simple argument that it's not possible to fail disclose something of which the SoS is already aware.

In the alternative, and I'm wondering if this is what Mike was suggesting, there might be good grounds for discretionary non-recovery.

Just to pick up on what Tony has said about informatioon in the hands of the issuing office. There will still be a failure to disclose (disclosure must be to the issuing office - Hinchy) the question will be one of causation. Was the cause of the overpayment the claimant's failure to disclose or an error on behalf of the issuing office, or a bit of both? That is not always as straight forward a matter as many of us would like it to be.

The only other chink of light might be if HIS mental condiiton at the time was such that he was not aware where he was - unlikely I know but not impossible with a stroke. You can't disclose something you do not know.
On the Re B basis however the fact that he might not have understood the duty to disclose is irrelevant.

Having made a few enquiries, we have now ascertained that there is in fact a electronic notification issued by DLA to Income Support requiring them to take whatever action may be necessary.

This is called a "System issues transaction report - a TDA - TAA 24201: this is apparently activated when a DLA/AA claim is suspended - as would happen after notificaion of hospitalisation for more than 4 weeks.

This raises several important issues in the light of the advances in making claims for benefit and the creation of a Virtual online DWP.
A claim for benefit can now be made by telephone to a call centre located anywhere in the Country and even online: a change of circumstances can be reported in the same way as opposed to the now redundant instruction to report it to the office which dealt with your claim.

In view of this the first question that comes to mind is whether the Howker judgement still valid, in that the Benfits world which existed at the time of the judgement has since been transformed into a virtual one, where one phone call can be rerouted and answered by any one of a number of anonymous call centres throughout the country.

In the present case, when the fact was reported to DLA that the claimant was in hospital and had been there for more than four weeks, the DBU suspended the claim. They would then have sent out the System Issue Transaction Report to Income Support, requiring them to take whatever action necessary.

The arguement was always that one couldn't be said to have failed to notify the S of S of a fact of which he was already aware. In this case he would have known because of the system that DLA uses to notify Income Support. If they then failed to take the appropriate action then that would be official error.

Also in this case we aren't sure whether the DLA was paid directly by them, or through the local BDC. We have had one in the past where the DLA was paid by the local office, and was stopped on intructions from DLA, but the I/S with the premuims rolled on for several weeks afterwards....

....Slight correction - for "Howker" read "Hinchy".....

OK, it's Friday........................

I agree with the principle you raise Mike, but you said this:

"They would then have sent out the System Issue Transaction Report to Income Support, requiring them to take whatever action necessary."

I think that in order to effect a change in thinking along these lines it would have to be the case that when DLA is suspended, the 'system issue transaction' is automatically sent by electronic form to the local office. That way, the fact of a DLA suspension would be enough to guarantee that the local office are aware of the change.

Anything less than this (e.g. someone has to push a button specifically to send the notice, whether by post or electronically) would probably mean that Hinchy retains it's validity.

On the wider issue, you make a very good point. How is a person supposed to know exactly which office to contact when they make thier call to one office, attend interviews at another, get a NINO from anther, and get thier correspondence from another - some of which refers to them to yet another).

It makes we wonder about this so-called benefit simplification project... maybe the project is to remove all signs of simplification from the system.

"Anything less than this (e.g. someone has to push a button specifically to send the notice, whether by post or electronically) would probably mean that Hinchy retains it's validity."

Thinking purely about the physical procedure involved in suspending a DLA claim I should imagine that to send the Transaction report, one has to tick a box on the computer screen, or activate a link as part of the inputting of the suspension notice. Whilst that would be (strictly speaking) a manual operation, one could say that it could'nt be done automatically as not all DLA claims have I/S attached to them.

OK ...a little lateral thinking ... applying every day logic would we not be arguing that whether the System issue transaction reports are sent automatically or manually is not fatally crucial, as part of the claimant's case is the fact that the S of S was aware of the I/S payments, if for no other reason than the fact that he set up the system of notification which has to be adhered to on suspension of a DLA claim.

On the face of it this case would appear to be an ideal vehicle with which to test the water given that we now live in the aforementioned virtual Benefits world, light years distant to that of Hinchy.

But is it so different from Hinchy... At para 32 it is said "The claimant is not concerned or entitled to make any assumptions about the internal administrative arrangments of the department. In particular, she is not entitled to assume the existence of infalliable channels of communication between one office and another".

The only real saving grace is that their Lordships went on to say her duty is to comply with...the simple instruction in the order book" when of course there are no more order books and the information that is included in letters and advice notes is now subject to the department having proven that the letters and notes were sent out and contained specific and accurate instructions.

I have no doubt that there will come a time when the issue is tested again but, for the time being at least, I don't believe the position of the department or the judiciary is likely to change.

The oft stated goal of DWP is a fully joined up computer system in which customers will only report a change once at the point of their choice, by whatever means they wish. The TAA 24201 work report which Mike has helpfully obtained details of, is part of that joined up system, though not yet fully automatic. I'm sure it is a daily "Work Available Report" (WAR) printed out at the BDC. These are then passed to the processing officers on the benefits teams to action, by physically inputting the information on the IS/JSA/ESA benefits systems.

This is where the the system may fall down e.g. WAR reports are not always actioned on time; sometimes they may sit for weeks; some processors are better at this than others; reports can go "missing".

I tend to agree with Mike, there is definitely some mileage in pursuing the kind of tack he suggests. The DWP wants its cake and wants to eat it. Also some of this old caselaw is being overtaken by technology. It has to be challenged.

If the system works as John has described, the Officers with that information in the form of the WAR can only be said to be in possession of that information.
if the claimant (as in this case) did not report a Cof C then it would be of no consequence, in that the S of S, in the form of the officer about to input the C of C, is already in receipt of the facts. Therefore there would be no failure to inform....?.

Many thanks to everyone for their contribution to this piece. The customer's sister has now posted off a letter asking them to look at this decision again and highlighting the fact that she did all the right things that she possible could, given the circumstances.

If you've a spare minute or two, can you keep us up to date with developments..?

Yes, certainly will do that...

If it's of any use, the guidance on the internal DWP internet is as follows:
=================================================

"Notifying another benefit area of an award/change of award -
Other benefit areas can issue, where appropriate, an extra amount/disability premium when a customer is in receipt of AA or DLA MR/HR care component.

When an award/change of award is processed on DLACS/AACS, the system automatically notifies SDA and IB on report FDA/FAA40105 (orange card). This shows the customer's details and the award of DLA/AA that has been made.

System transaction TDA/TAA24201 will be issued to IS/JSA/ESA and
SP/PC."

====================================================

.....and viola ! - they do talk to each other ........well OK, maybe it's not all singing all dancing entertainment but for DWP .............

+===========================================

RIS30715 is the DLA/AA Interface report produced by the Income Support Computer System (ISCS) when DLA/AA is awarded, or there is a change to the DLA/AA award (including termination of awards) for Income Support or Pension Credit customers. Changes affecting JSA are notified via a report JA72168 which is produced as a Work Available Report and is passed to the JSA changes team for their action.

============================================

So it would appear that, at least in the circumstances of this case, the change of circumstances had been reported correctly, and there is an electronic system in place to notify asny other departments that may have an interest, such as JSA or I/S. Therefore any overpayment may well be official error.

Given the procedures that are now in place, is the ruling in Hinchy still good law and is it still the same stumbling block that it is percieved to be...?

Without going over old ground regarding issues like causation, Hinchy remains good law because it is a decision of the House of Lords and is absolutely binding on all lower courts/tribunals on the fundamental ratio of its decision until the House in a later case decides otherwise.

only if it can't be distinguished....

I promised I would get back to you with whatever result occurred in this case. Although it took months and a load of correspondence and letter of complaint, they have finally stated that the matter will not be persued in a very brief (two sentence) letter. It gets better! She has now received notification that compensation is to be paid into his account as the service received in this instance 'was below acceptable standards'.

i know this case has had a positive outcome but did this case CIS/2710/2008 not argue that even if a dwp department had information and did not act on it that clients could still be held liable if they had still failed to disclose a material fact?

I don't think that CIS/2710/2008 is authority for the proposition that disclosure by a third party means that the claimant then is liable for any OP after the date of disclosure.

This decision runs contrary to a long line of authority which is effectively "disclosure = disclosure", and there are UT decisions where the the opposite was held (eg CPC/3743/2006 (at paras 33 and 34), CIS/2365/2007 (para 20) and CIS/1462/2006). So CIS/2710/2008 may be one of those wrongly decided UT decisions.

If CIS/2701/2008 is good law it would mean that DWP should not be acting on all the thousands of disclosures made each day by third parties - partners informing that partner has started work, relatives notifying of a death of claimant or of hospital admission, social workers informing DWP that children are in care or that a claimant is in residential care, etc, etc. It the decision is right, they should also not be contacting third parties to disclose facts which is also part of the routine business of benefits administration.

The system could not operate without third party disclosures and OPs would go through the roof.