overpaid Income support £50.000

You wont know what the chances are until you get the bundle

If the client asked for an MR but the DWP have not replied I cannot see how the appeal would be out of time

I would submit an appeal without the MR notice and explain why (argue Article 6 Human Rights - right to fair hearing within a reasonable time)

For what its worth I have seen a few living together cases where the Tribunal has to say the least not been impressed with the DWP’s evidence and arguments

Oh and don’t forget that the local authority are not bound by the DWP’s LTAHW determination so submit the HB appeal to the LA in the first instance

thanks Stainsby, yes good thinking,  the LA also sent her an MR which oddly she also never got, but that was only last month, not sure why it has taken LA so long to deal with it, ben on phone 0 mins now waiting for iS to answer my call !!!!!!!!!!!!!

There is no requirement for MR in HB

Did the client ask for a revision initially

I hardly ever bother asking for revisions with HB usually just go for an appeal.

The LA can still consider revision at that point

Some LA’s say that you then have one calendar month to appeal after they decide not to revise but you should just insist that they refer the appeal to the Tribunals Service and provide their response.

If they don’t respond send your appeal direct to the Tribunals Service and cite R(H)1/07

DWP living together investigations, even when involving a home-visit, are generally cursory/superficial. Cover most of the right areas but never in enough detail. A decent detailed sub which covers all the areas in depth should do the job nicely I’ve repeatedly done subs. which put DWP on the spot by going into pages of irrefutable detail; pointing out where DWP fall short or choose the easy inference. General outcome is that the tribunal want to see the appellant for 5 to 10 minutes; want them to confirm that they’re fully aware of what I’ve put in the sub. and then the case is won. Not had one in ages but they’re the classic “detail is your friend” type case. Park yourself with a CPAG. Use their lovely section and its headings as your headings and away you go.

Ok thanks Mike

Have you confirmed if and when the couple divorced? 

If they were still actually married it comes down to a question of whether they were living in the same household during the time of the alleged overpayment.

Hi, not sure if they are divorced !!!!
yes we will have to argue it was not the same household, after 12 years of living in same building it could be a tricky one

You should go speak to the Expert Advice Team.

Thanks Elliot, it case law still worth quoting in these sort of cases, I know it’s all about the particular circs but a good bit of case law sometimes helps it along,
its £100.000 totalo overpaid , no prosecution !!!! so quite a serious case to win or lose

What I will say is:
1. Yes, there is loads of caselaw on LTAHW.
2. Yes, it is a very high stakes case.
3. You need to take appropriate support from EAT. We can’t give you the level of detail here that you will need.
4. You need to reflect on, and speak to your supervisor about, whether you are appropriately placed to deal with the case at all, given that your posts above suggest that you haven’t dealt with an LTAWH case at all, yet alone one with a six figure overpayment on the line.

I agree with Elliot

On a purely evidential matter, if they are not divorced after 12 years of “estrangement” the client would be well advised now of the need to come up with an explanation of why they are not divorced, and similarly an explanation of the household arrangements

Ok Stainsby,
I have to do a full investigation with her, so far its a bit vague, she also does not tend to engage very easily with us,

Diogenes - 29 February 2024 01:31 PM

Ok Stainsby,
I have to do a full investigation with her, so far its a bit vague, she also does not tend to engage very easily with us,

I am a bit concerned that this does not deal with my points (3) or (4).

Elliot Kent - 29 February 2024 12:59 PM

What I will say is:
1. Yes, there is loads of caselaw on LTAHW.
2. Yes, it is a very high stakes case.
3. You need to take appropriate support from EAT. We can’t give you the level of detail here that you will need.
4. You need to reflect on, and speak to your supervisor about, whether you are appropriately placed to deal with the case at all, given that your posts above suggest that you haven’t dealt with an LTAWH case at all, yet alone one with a six figure overpayment on the line.

1 - Caselaw is helpful and there’s lots of it, but, in this sort of case it’s main use is to sway a decision maker/tribunal between one inference being drawn from evidence versus another. I tend to the view that, where the inference is plainly wrong, caselaw can help remind why but where the inference is within the range of reasonable responses it’s far better to have obtained sufficient detailed evidence to destroy the inference.

An example of this might be photos of the couple as a couple on the fireplace in the living room. DMs tend to look at that and think “Well why would you have those there if you’re divorced and yet in the same house?” whereas a detailed discussion with the claimant might reveal that the two of them have adult children for whom the concept of them being divorced remains traumatic and so they have agreed on putting “something” up so it becomes much less of an issue even if it remains an issue for them. Equally you may find those photos are only up when a visit is anticipated etc. Detail is your friend.

2 - Yes and no. It’s high stakes for the claimant but in reality any rate of repayment on that will never recover it all unless they win the lottery or acquire/sell a significant asset and that instantly creates an argument for some discretionary write off at the end of any appeal process. From an advisers perspective I think a clear head is required. I have dealt with a £36 overpayment and a £120,000 overpayment. The figures involved did not vary my approach. What are the facts and what is the evidence. 

Again, an example, I had a £120,000 overpayment. For once the case was not winnable once the full facts had been brought forth but on appeal the recoverable element was reduced to £60,000. Looking then at the person’s income it was clear that £45,000 of that would never be recovered so we pushed for the SoS to use their discretion to not recover. They were somewhat reluctant as they obviously had one eye on the estate further down the line but we were able to show levels of debt with a higher priority so even if the claimant passed away they still wouldn’t get their money. £120,000 eventually thus became £15,000 and the appellant felt like they’d won even though they had lost.

3 -  Tbh I think CPAG WBH has all the detail needed for the overwhelming majority of such cases. It’s really about understanding that nothing can be left in the air. The facts need to be known inside out and all possible inferences addressed in full. My average sub. for tribunals on such an issue would be about 20 sides of A4. Every aspect addressed. Nothing left unsaid or to chance whether it was why the food was in shared cupboards; why they went out together; why they ate together or where they slept; when they’d last slept with each other and so on. Thus my living together appeals have rarely exceeded 15 minutes because ALL the work needs to be done in advance and nothing, absolutely nothing should ever come to light on the day.

Also useful in some circumstances to put two lots of evidence in there i.e. from each partner if practicable. I have had several cases succeed when the other party put in writing, often under oath, exactly how they viewed the relationship and that just ended the whole thing.

Diogenes - 29 February 2024 01:31 PM

Ok Stainsby,
I have to do a full investigation with her, so far its a bit vague, she also does not tend to engage very easily with us,

Okay so you need to know the main caselaw as spelt out in CPAG and then lay out to the client that those are the things you will be addressing in full so any vagueness or disengagement is simply an end to the case.

On a lighter note I did once do a huge amount of work on a case arguing exactly this issue only to then do a home visit where I was kept waiting and eventually greeted through the upstairs window by two people rather obviously perspiring and putting their clothes back on. I didn’t settle for the “She was helping me painting” argument given the lack of paint etc.