Overpayment - loss to public purse?!

DWP guide attached.

Hi Paul - many thanks for the link.

I have done some more digging and established that at the outset of the IB claim my client was not the appointee, in fact she did not become so until a year after the pension income started.

When she took over as appointee she was under the impression that all was ok and hopefully I will be able to argue that the overpayment is not recoverable from her. Although in true DWP fashion the decision letter/s do not state whether the IB recipient or my client (or both) are liable to repay as they ought to as confirmed in R(IS)5/03… does anyone have a copy of this decision???

Here you go

Like a Friday Christmas miracle worker…. Thanks Santa

Altered Chaos - 19 December 2013 10:43 AM

Hi all,

Client and spouse read award letters (clearly stated pensions to be disclosed) so no real argument along Hinchy grounds etc.

quote]

This sort of statement is the one that always fascinates me. TWO people clearly read a letter and supposedly BOTH choose to not act upon it. Sorry, but I don’t, and never have bought that kind of response. Are we saying this was an act of wilful fraud?

Assuming for a second, that we are not, then what exactly took place?

First of all, there are few letter that both spouses read. When they do there has to be a good reason to do so. Generally though you get your post and the other person gets there and never the twain etc…..

Secondly, BOTH choose not to act and make a disclosure. Why not? What are the facts that in each individual case lead both people to not act? By probing into this you tend to find that one person, at minimum one person, will have been fixed with that great old phrase “a mistaken belief, reasonably held”. These tend to pop up on a sliding scale from “bloke down the pub told me” to “DWP told me”. Either way, worth looking into.

Thirdly, in a case like this I would always query literacy. People are either up front about numeracy or literacy or they hide it brilliantly. Often, one covers for the other. It gets missed all the time. One clue is when you ask a client to put something in the post to a freepost address but they’d rather you collected it. Another would be if the client rings off when you’re in but always leaves a message via voicemail or someone else asking for contact about a letter. When you ring they can never find the letter. And so on… Anyway…

Fourthly, why is the fact they both read it relevant if one was the appointee for the other? The only obligation would fall on the appointee, unless of course the DWP sent the relevant letter to the claimant not the appointee!!!

To deal with another point, this is not the sort of case I would go for a waiver on. A waiver ends the appeal but means the last valid decision was one to recover. So, all they’re doing is using their discretion to not recover now. Funnily enough, when the person dies, they revisit that discretion and come to a different conclusion on a regular basis. You of course are then somewhat out of time!

Finally, I think it’s easy to muddle the appointeeship stuff and I’m unsure the attached decision unmuddled it. The overpayment arises during a period where there was no appointee? If so, then the question is whether the claimant knew the material fact at that time and whether they could have disclosed it. When the appointeeship is put in place it’s a similar set of questions but potentially harder to get out of depending on the facts around that transition.

Being a sad sack veteran of the Supp Ben. wars there are lots of interesting aspects of appointeeships which get missed nowadays but in this case my query would always be BOTH of them read a letter and didn’t act??? As advisers we often seem to accept a certain opacity of response and just move on. I would maybe take a step back… with apologies obviously if you know exactly why they didn’t disclose but are unable to say :)

Hi Mike

Thanks for the post. I should have been a little more detailed in my initial post but glad to know I had considered the questions you raised and I am not yet losing my touch!

I have received the DWP submission so have more details - appeal lodged to protect the client’s rights - waiver was my plan B.

At the outset of the IB claim the claimant was asked and answered with an in-depth detailed letter about his occupational pensions, their value and the exact date he would start receiving them!! (this gives me considerable scope to argue that the DWP knew of them especially as they provided a copy of the claimant’s letter in their submission!).

The claimant did indeed read and understand his initial award letter and enclosed IB40 leaflet but due to his ill health (depression and aspergers) he forgot about contacting the DWP when the pensions kicked in.

His wife became appointee about 18 months after the IB claim was made (she too is highly literate) and she acknowledges receiving and reading the annual uprating letters but did not think she had to do anything… thinking husband already declared (scope here re; reasonableness). When the DWP general matching service flagged up the occupational pensions they sent her an IB6 which she duly completed with all the occ pen information - which shows they were not acting fraudulently as she honestly declared when asked.

So, all letters to him read by him, when wife became appointee she dealt with all correspondence… hence my cack-handed way of explaining they ‘both’ read them!

I will have to break this case down into:
- Overpayment when claimant running the show… made declaration of pensions and start of claim so no failure to disclose material fact (DWP already advised)
- overpayment when appointee in charge… can’t disclose something you don’t know (reasonableness).