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DLA overpayment using DVD evidence
I have a lady who was brain damaged in a car accident, was awarded HR Mob and HR Care after EMP visit back in 2006. An Insurance company have sent DVD evidence to DLA showing the woman now walking in a holiday in Corfu and riding a bike. The DVD evidence only shows activity from 2010. DLA have reviewed award from 2006 and disallowed the whole award. They have reviewed it on the grounds that her husband who is the appointee misrepresented/exaggerated her needs on a self assessment. The award they reviewed was based on EMP report but that report is missing as file has been lost in DBC. The evidence does suggest a low rate Mobility from 2010 as she has had numerous physio which has now got her back on her feet but she still takes seizures and is peg fed. I have been instructed by Tribunal Judge to submit a written submission beifre hearing. Would anyone agree that I should challenge decision saying that DLA have not proved that misrepresentation did occur as the evidence only goes back to 2010 not 2006? Any Case Law that would help would be helpful
I would definately agree yes. I can’t see how the DWP can argue misrepresentation on the original claim form if the award was made following an EMP report . It is obviously very unfortunate that the report has been lost, is there a record that one was produced? If so then that should be sufficient to argue against misrepresentation. Is there any other evidence between 2006 and 2010?
Yes the award notice states that award was based on the claim pack and an EMP report. There is no evidence between 2006 and 2010 but the Insurance company paid Psychiatrists etc to examine her and they are more or less saying she is a good actress. Her husband took her to a gym and in 2010 she could walk and the DVD shows clear evidence of this. Because I have to put in a submission prior to even getting a date for a hearing I’m not sure if I should argue what I now think should be low rate Mobility and perhaps MR Care or just concentrate that there was no misrepresentation on my initial submission. We have independant reports of our own to put forward
Are they going for an overpayment recovery as well?
Yes £32,000 right back to 2006
Then you need to get hold of his medical records from 2006. Presumably the insurance company didn’t pay out without some form of evidence. Find out what. Recovery can only be found if any misrepresentation was the cause of the overpayment. You will need to be prepared to argue that even if misrepresentation is found then that was not the cause of any subsequent overpayment. The findings of the EMP were.
I have all records going back to 2006 and her husband has kept a daily diary from the date of the accident ( however there are thousands of pages) of all he does for her. The Court case was thrown out due to times, witnesses etc and no Insurance was ever paid out because of surveillance reports.
As I am a first tier adviser i dont do tribunals however i attended one last year as an observer (as i am nosy!)
The case concerned video evidence to withdraw HRM as the tape showed the client walking briskly up the road. The tribunal sided with the DWP, however they only recovered money from the date the recording was made and not from when the DLA award was originally made.
Dont know what caselaw they used to make this decision but that is how it went.
What is the role of the insurance company in this?
What is the role of the insurance company in this?
I imagine that they carried out their own investigation in respect of a personal injury claim made by the client against a person or body that they were insuring. Whether they then passed on the results of that investigation to the DWP because they felt they were legally obliged to or out of sheer badness is, surely, neither here nor there so far as the client’s defence goes….
If there was to be a challenge to the accuracy of the content - selectivity, creative editing, proof of dates, manipulation etc. - then they would need to justify the DVD with witnesses, producers, editors and so on. Are they likely to do that without there having been some, unspecified, contact with the DWP?
Is this an appeal against the decision that she’s not entitled from 2006, ie against the decision revising entitlement? Or just an appeal against the overpayment?
Both there are two appeals
Gareth rightly makes the point that DVD evidence can be selective.
There are video and counter-surveillance specialists used by personal injury lawyers to analyse video evidence. It may be worth getting such expert input.
It’s too easy to be swayed by video evidence, here are some apparent tricks of the trade:
1. Splicing together film taken by different operatives.
2. Selective filming - eg waiting for ages (days?) while client struggles alone at home and only filming when they eventually emerge to walk to the shops. Ask to see logs of surveillance, notebooks, time sheets, etc.
3. Filming at a distance which has limited evidence of walking manner, pain, etc.
4. Camera angles and lens’s focal lengths which distort abilities, picture of client obscured by trees, walls, cars, etc.
5. Filming clients standing or driving, not walking and/or walking very short distances.
If DWP or LA, ask for a copy of the authorisation under Regulation of Investigatory Powers Act and also consider asking for the camera operative to be called as a witness.