An overpayment arose from misrepresentation (capital omited from review form) but only the partner of the claimant knew of the capital, and the partner signed the form. Can the overpayment be recovered from the partner?

Fri 26-Feb-10 03:47 PM by Kevin D

Depends.

If the declaration is sufficiently clear as to whom is declaring, then the partner's signature may well be sufficient as evidence of misrepresentation.

If "misrepresentation" is satisfied, the overpayment is lawfully recoverable from the person(s) who made the misrepresentation, irrespective of the reason for misrepresentation. This actually applies to ANYONE who misrepresents, not just the partner - HBR 102(2)(b) - April 2009 version.

Based on the info given, it sounds as if the o/p is recoverable from BOTH the clmt AND the partner. By definition, the claimant also misrepresented - however innocently.

Edit: Just to add for the avoidance of doubt; a partner can only be caught by "misrepresentation", not "failure to disclose". This is because, for HB/CTB, only the claimant is under a duty to disclose and there is no such thing as a "joint claimant" for HB/CTB.

The form of the declaration is:

I declare that the information I have given on this form is correct and complete

Your signature................ Your partners signature................

Since the claimant is the only one who gave info on the form is he the only one who could have misrepresented?

Is it "I", or "I/We"?

If the "We" is missing, it *may* be arguable that that there is insufficient link between the partner's signature and the declaration - much will depend on the layout of the form. The LA counter-argument would, presumably, be that the partner signed with the understanding the declaration applied to her and, therefore, she's caught. Further, if the partner didn't think the declaration applied to her, what did she think she was signing?

I don't think it matters who completed the form. Petitions are only written by one person but can be signed by thousands. I haven't heard it argued that only the writer's view counts .

Thanks for the help Kevin.

It's definitely 'I' not 'we'

My client is the one who didn't come into money. It seems he did know she had a windfall but didn't realise how much. Can't see any question that he didn't fail to disclose and on the review form misrepresent. In terms of targets for recovery is it worth arguing that she is a potential target too for the period after he misrepresentation? Can the overpayment be split up like this for recovery target purposes?

We have other (better) lines of argument in the appeal but I just don't want to neglect something else.

Wed 03-Mar-10 12:29 PM by Kevin D

Nothing to stop you making the argument(s) but, even if you get beyond the failure to disclose (presumably on the grounds the clmt didn't have any knowledge), your client still misrepresented the position, albeit innocently. He signed a form stating capital for both him and his partner was "X" when, as a fact, it was "Y". That is a misrepresentation.

As an aside, the fact he did know of the windfall, but simply not how much, makes it much more difficult to argue he did not "fail to disclose".

Assuming there is no LA error, the overpayment is recoverable. The only remaining issue is from WHOM it is recoverable.

In my opinion, based on the info given, the o/p is recoverable from BOTH the clmt AND the partner and I can't see any way around that - S.75(3b) SSAA 1992, in conjunction with the April 2009 version of HBR 101(2). In my view, the Tribunal has no power to apportion degrees of blame / amounts between the parties.

Bear in mind, if the o/p is recoverable from more than one "target", all targets MUST be notified equally. If that has not happened, the "decision" is of no legal effect - R(H) 6/06. However, that doesn't prevent the LA from rectifying any omissions and simply starting again.

In turn, the issue of recovery is not appealable, so the LA can seek recovery from either, or both, of the legitimate targets in whatever proportions it chooses to do so.