× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

“clear and unambiguous instructions” - help needed….

past_caring
forum member

Welfare Benefits Casework Supervisor, Brixton Advice Centre

Send message

Total Posts: 87

Joined: 25 June 2010

Have a case that can be summarised as follows;

1. IS overpayment appeal dating back to 2001 - 2002. Appears that valid in-time appeal was submitted at the time, but never forwarded to Tribunals Service. Some dispute/complexity with this but I am confident of resolving in client’s favour.

2. Overpayment concerns client failing to disclose work - only ground to entitlement to IS at that time was via incapacity. Client did get work confirmed to be “therapeutic” after some months and then notified DWP. Work accepted as therapeutic, but overpayment in relation to period prior to notification. Client attempted to get work accepted as therapeutic retrospectively, but dept. (rightly, in my view) rejected this, despite supporting letter from GP.

3. So, whilst I can get appeal heard, the only prospect of success that I can see is if the instructions issued to claimant at the relevant time were not “clear and unambiguous” as per Hooper. The problem is that Hooper concerned instructions that were issued to claimants to inform them of the changes to be introduced when the permitted work regime replaced the therapeutic work rules….I don’t really want to waste time getting this appeal to tribunal just as a method of discovering what were the instructions that were issued to claimants at the time - these would have been in her order book, as that was the method of payment at the time.

Has anyone got an old case hanging around where you’ve still got a copy of the standard instructions to claimants?

Ta.

AXM
forum member

Social Security Law Newcastle Law Centre

Send message

Total Posts: 9

Joined: 22 June 2010

Can the SOS prove that there has been a valid and legally effective decision(s) on entitlement ?

past_caring
forum member

Welfare Benefits Casework Supervisor, Brixton Advice Centre

Send message

Total Posts: 87

Joined: 25 June 2010

SoS may well be unable to, given the length of time that has passed. But I have decisions issued to client at the time - and it doesn’t appear that there are any issues with the validity of the supersession of the awarding decision (o/p period was some 9 months, so not a huge number of decisions to revise or supersede).

Kevin D
forum member

Independent HB/CTB administrator, consultant & trainer (Essex)

Send message

Total Posts: 474

Joined: 16 June 2010

In my view, the principle in “Hooper” remains valid.  Whether the instructions were by order book or the infamous INF4, they must still be clear and unambigous.  If your client’s position is that she didn’t notice such instructions, or that they were unclear, that puts the SoS in the position of having to demonstrate what the contemporaneous instructions are.

In paras 31 & 32 of CH/3208/2008, Judge Richard Poynter stated the following:

31 Regulations 86(1) and 88 are in similar terms to regulation 32(1) and (1B) of the Social Security (Claims and Payments) Regulations 1987. Speaking of the latter regulation in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, Baroness Hale of Richmond stated (bold is my emphasis):

  ‘55.  This is commonly regarded as imposing two duties: a duty to give the information and supporting evidence required by the Secretary of State and a further duty to notify changes which the claimant might reasonably be expected to know might affect the right to benefit to the appropriate office. It is not entirely plain whether the second duty is merely a particular instance of the first, so that the Secretary of State must have required such changes to be notified, or whether it is a free-standing duty. In my view, nothing turns on that difference here. In the first case, it is incumbent upon the Secretary of State to make it crystal clear what it is that he needs to know and in the second case the claimant cannot reasonably be expected to know that something might affect his claim to benefit unless the Secretary of State has made it clear what sort of changes might do so.

  56.  I say this because this regulation has to be interpreted and applied in its factual context. Those administering the system on behalf of the Secretary of State have to understand all its ramifications and interactions. Claimants cannot be expected to do so. They cannot be expected to guess all the information which may be relevant to their claims. They do not know the conditions of entitlement or how their right to one benefit may affect their right to another. It is incumbent upon the Secretary of State to make it clear what information he requires. This has to be made particularly clear where any reasonable claimant might not think that it was relevant at all …’

Even if that passage does not bind me, I respectfully agree with it. In my judgment, the principles it sets out apply equally to housing benefit and council tax benefit as they do to the social security benefits that are administered directly by the Secretary of State for Work and Pensions.

32 Therefore:
(a) before there can be a ‘requirement’ for a Karen to provide information or evidence under regulation 86(1) it is necessary for a local authority to be ‘crystal clear’ about what is required; and
(b) for the purposes of regulation 88, Karen cannot reasonably be expected to know that something might affect his claim to benefit unless the Secretary of State has made it clear what sort of changes might do so.

past_caring
forum member

Welfare Benefits Casework Supervisor, Brixton Advice Centre

Send message

Total Posts: 87

Joined: 25 June 2010

Hi Kevin

Of course Hooper remains valid - I’d hoped my first post made that clear, but perhaps it was poorly worded. What I was attempting to convey was that whilst I am able to use Hooper to argue that the SoS’s instructions must, demonstrably, have been clear and unambiguous in order for him to establish a breach of the claimant’s duty to disclose, I am unable to rely upon it to show what those instructions were. Hooper dealt with the new instructions that were issued to all claimants claiming IB or IS on the basis of incapacity with the coming into force of the permitted work rules, whilst the o/p in this case relates to the “therapeutic work” rules that preceded permitted work.

Unless separate instructions (in the form of a leaflet, perhaps) were issued to claimants of IB and IS on the basis of incapacity at the time of the therapeutic work rules, I cannot foresee there being any mileage in disputing whether instructions were in fact issued - client was paid by order book and as I recall, instructions as to what changes were to be notified were contained at the back of the order book. Whether those instructions were in fact clear and unambiguous is the issue here. Yes, I can wait until the department produces its sub (if it turns out that the appeal was never passed to tribunal for determination) to see what those instructions were, but I was hoping for a bit of a short cut. It will take a significant amount of work to establish what actually happened to the appeal (the only record will be the claimant’s archived paper file which may well have been destroyed) and this is something I would rather avoid if it is clear at this stage that the instructions actually were clear and unambiguous.

AXM
forum member

Social Security Law Newcastle Law Centre

Send message

Total Posts: 9

Joined: 22 June 2010

Was your client in reciept of IB or Credits. If is was credits then it may not be possible to retrospectively supersede the credits award.  Further can the DWP show that the IB decision was promulgated to the client ?

Chris Orr
forum member

Glasgow City Council Appeals Team

Send message

Total Posts: 27

Joined: 1 September 2010

I don’t follow the logic. The assumption seems to be that the the department will be able to produce a copy of the instructions and proof that they were sent.

Why assume this?  given the length of time that has passed surely it would be better to await the written submission from the department and see what they are able to prove.  The older they are the less probable it is that they will be able to justify their submission.  The longer it takes the department to prepare their appeal then the greater the burdeon upon them after all
their delay has probably fatally prejudiced your client’s ability to give evidence about what happened all that time ago, so right to fair trial etcetera. This applies to the notification of the IB/credits decision as well.

past_caring
forum member

Welfare Benefits Casework Supervisor, Brixton Advice Centre

Send message

Total Posts: 87

Joined: 25 June 2010

For clarity’s sake: client was in receipt of IS on the basis of incapacity. That was her only route to IS entitlement. This is not a case of the dept. deciding now that she was overpaid then. Decisions were properly made at the time and notified to client. Client seems to have lodged a valid appeal at the time, but it is unclear whether this was ever passed to tribunal for determination (she says not). There is a letter from Debt Management from the time confirming recovery suspended until appeal determined. As client began work and stopped claiming IS shortly after, recovery via deductions from benefit never commenced. For this reason, client did not concern herself further with the overpayment and appeal until Debt Management again began to pursue recovery earlier this year.

Client does not dispute the fact that she worked and that she did not notify the dept. of this. Dept. accepted work as being therapeutic from the date that client obtained confirmation of its beneficial nature from her GP. But work not accepted as therapeutic retrospectively (i.e. prior to client having first discussed its potential benefits with GP). My reading of reg. 17 (1)(a) of the Incapacity for Work Regs. as it read at the time (“work undertaken on the advice of a doctor”) is that the dept. were correct in taking such an approach.

I have had instructions from the client - these are clear and as indicated above. Client is also clear that she was paid by order book at the time. Having worked in this field for more than 14 years now, I am fully aware that such order books did contain instructions as to changes that claimants were asked to notify, although I cannot remember their precise terms (hence the relevance of Hooper). I cannot wish any of this away, nor am I prepared to go before a tribunal and pretend that my client’s instructions are other than they in fact were.

I know everyone is trying to be helpful - and that is appreciated - but the information that I requested in the first post (that is, whether anyone still has a copy of the instructions contained in IS order books in 2001) is really the only thing that I require here.