PIP overpayment recoverability

Another day, another chaos.

Situation:
Claim submitted to PIP in 2016, awarded enhanced rate for both components.
Client has been residing in a nursing home since well before the claim, joint funded by CHC and 117 (with varying percentages over the years).
PIP sees ‘care home’ and doesn’t pay daily living component, but leaves mobility component in payment.

I’ve raised with them today that this doesn’t appear to be correct, and it seems they have not sent out the forms to request information on the funding arrangements and therefore assumed local authority funding and left mobility in payment. They will now send these forms out (and have paused all payments).

Obviously this client has been receiving money he was not entitled to for several years, but the question is: is it recoverable? Is this official error or is it a failure to disclose?

And as an aside: if there were to be many of these, what is the risk of not informing DWP of their error if the overpayment is not recoverable?

Thanks all

Section 71 SSAA 1992 -

71Overpayments - general
(1)Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure—
(a)a payment has been made in respect of a benefit to which this section applies; or
(b)any sum recoverable by or on behalf of the Secretary of State in connection with any such payment has not been recovered, the Secretary of State shall be entitled to recover the amount of any payment which he would not have made or any sum which he would have received but for the misrepresentation or failure to disclose.

In the case you describe, there appears to have been neither misrepresentation nor any failure to disclose…moreover, because the claimant was in the care home apparently at the time the original claim was made (in fact well before, you say) ...then unless the claimant failed to provide or misrepresented information about their (then) address and circs, it is the S0S who has arguably failed to make sufficient reasonable enquiries within the administration of the claim.

A routine uprating letter from PIP notifying that the claimant should inform of any changes will not wash either - nothing has in fact materially changed.

There is then a further potential issue/hurdle in these cases about the mental capacity of the claimant

Can’t say this will ALWAYS be the case but in this particular type of scenario (with the caveats above) I would suggest the risk is minimal as the SoS has no power to legally recover, would have to issue a formal decision on the overpayment and a demand for the monies and any appeal brought would IMO be bound to succeed under the limits of powers conferred under s71

Thanks, Peter, that was largely my thinking.

If it has an impact, all these clients are appointee clients until the council’s appointee team, claims submitted by Corporate Appointees.