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Forum Home  →  Discussion  →  Benefits for older people  →  Thread

Overpayment of PC (carer premium)

BeatriceC
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Benefits Caseworker, Ely Citizens Advice Bureau

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Joined: 29 June 2010

Hello beautiful people. I was wondering if you think this case is worth pursuing and what are our chances of success. I find overpayments very difficult to succeed with and I don’t want to give the client false hopes.
My client has an PC overpayment due to carer’s premium not stopping when it was supposed to. His wife became ill and was diagnosed as terminally ill in 2007. On 26/03/2007 she went into a care home funded by our local Council. Someone from Social Services visited client at home and filled in what he calls “the relevant paperwork”. My client was advised that they (Social Services)would take care of notifying the relevant benefit agencies. DLA stopped after 28 days. One year later client received the uprating letter from Pension Service and noticed that he was still paid a carer’s premium. He contacted Social Services again and once again they told him not to worry as they would take care of it.
He claims that carer premium did stop in summer 2008. Nevertheless the Pension Service through Debt Management are trying to recover £4,681 from him for overpaid carer premium (approx. 156 weeks or 3 years worth). I’ve phoned them to find oput more but they were absolutely useless and all they could say is that it’s for overpaid carer premiuim between March 2007 and August 2010.

Can it be official error if the fault is on Social Services (assuming we can prove on balance of probabilities that they assured client that they would notify)?

I would appreciate your thoughts!

Thanks

Bea

Ariadne
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Social policy coordinator, CAB, Basingstoke

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“Official error” as such is a housing benefit defence, not one for DWP benefits. The issue is:

Was she overpaid benefits? Yes, clearly as the qualifying benefit had stopped.

Did that overpayment result from failure to disclose a relevant fact - in this case, that the qualifying benefit had stopped? Come back to that one.

Had she been expressly instructed (even if she had never noted the instruction) to notify this change? Almost certainly.

The real issue here is whether there was a failure to disclose and I am not up to speed on the latest decision about which bit of the DWP you have to notify. It’s all PDCS, but presumably different offices of the Service. Otherwise, you can argue that the Secretary of State knew that DLA/AA had stopped, so didn’t need telling to stop CA: but I suspect it doesn’t work like that.

If she noted that it didn’t stop, and raised it with them but they failed to act, then prima facie that should break the chain of causation as the original failure is not longer the main cause of the ongoing overpayment. But how long did the payments go on and why didn’t she notice? There is case-law on the continuing duty to disclose when disclosure is not acted on.

Pete C
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Pete at CAB

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Judge Mark has made a very informative review of some of the relevant caselaw in CIS/2650/2009.

BeatriceC
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Benefits Caseworker, Ely Citizens Advice Bureau

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Joined: 29 June 2010

Thanks. Very useful judgment.
So if I understand well,  if we can show that the client did make a representation to the local authority (Social Services) and the local authority failed to pass on the information, or they passed it on but it was not acted upon by the Pension Service, then the chain of causation is broken and the overpayment not recoverable under S71?

Matthew Simpson
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Caseworker, Eaga PLC, Newcastle

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I recently had a similar case involving Carers Allowance not being taken into account and the client had been overpaid (and they had been). The client advised that they had told the PS.  The PS obviously said they had not.  We did a request for the PS file though data protection and low and behold at the front was a claim form from the time the cleint was awarded CA stating that they were getting CA.  Clear indication that the cleint had not failed to disclose or misrepresent and therefore arguable that the overpayment was not a recoverable one.

Might be helpful to do the same here.

BeatriceC
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Benefits Caseworker, Ely Citizens Advice Bureau

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Joined: 29 June 2010

Thanks Matthew. Good idea. We’ll request the file fromt he Pension Service under data protection. How long did it take to get the file, by the way?