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AA overpayment and alzheimers. Recoverable??
Just wanting opinions regarding the recoverability (if there is such a word!) of overpaid Attendance Allowance.
I have had a clients appointee in to see me.
The lady in question suffers badly from Alzheimers and was admitted to a care home in July 2013.
The appointee (who became her appointee in September 2013) has received an overpayment letter stating that she was overpaid Attendance Allowance from July to the 1st September.
He had no idea that she was in receipt of AA, and he feels that it is unreasonable for her to have to repay the money for that period, as she was not in any fit mental state to report this material fact and change of circs due to her Alzheimers. The fact she was admitted to the care home at that time should be evidence of this.
I am going to ask for a mandatory recon on this basis and argue that although the overpayment occurred it is not recoverable.
Opinions as to whether this will fly or not???
Thanks, as always
Thanks Tony.
Going to try the reg 32(1b) and insist that the change was reported as soon as was practicable under these particular circumstances.
Thanks Tony.
Going to try the reg 32(1b) and insist that the change was reported as soon as was practicable under these particular circumstances.
There’s a little more to it than that. Let’s say, for the sake of argument, that Equality Act and/or Mental Capacity Act arguments are doomed and we are left with the full force of the decision in B. Then you must first look to see whether the claimant was unambiguously notified of the changes he needed to report. If the answer is yes, then 32(1A) bites hard and the enquiry goes no further. It’s only if the answer is no that 32(1B) goes on to be considered. Note, notifications to claimants can be later modified rendering them ambiguous or unambiguous.
Agree with Nevip. If it can be shown that the instructions to the client as to what to changes to report were clear, then we are left with the decision in B i.e. it’s recoverable and the client’s capacity or lack thereof is immaterial to the recoverability issue. Of course, you could always ask the Secretary of State to exercise his discretion and not recover, wish you the best of luck!
Thanks fellas for the wonderful (sic) news
I will try this anyway and then I shall now pray to the God of poor decision making!
Lets face it, its never stopped them in the past.
Nothing ventured I suppose, apart from the price of a stamp.
However, I did say “let’s say, for the sake of argument, that Equality Act and/or Mental Capacity Act arguments are doomed…” I’m not convinced they are. If it was my case I would be trying to construct an argument around s149 of the Equality Act 2010 (see below). Submissions under its predecessor s49A(1)(d) of the DDA were not argued before the court in B so the issues have not yet been fully tested. I’d try and take this as far up the appellate process as I could.
http://www.rightsnet.org.uk/forums/viewthread/4255/
Im just hoping the DM that gets my mandatory request hasnt heard of “case B”
If recon refused I will have a natter with the local WRS and see if they can take the thing to tribunal ( we are only a lowly first tier project ‘sniff’ )
Im just hoping the DM that gets my mandatory request hasnt heard of “case B”
If recon refused I will have a natter with the local WRS and see if they can take the thing to tribunal ( we are only a lowly first tier project ‘sniff’ )
You might as well click your heels together 3 times and wish you were in Kansas. He’ll have heard of B alright. You can count on that.
But as I regularly point out, the Mental Capacity Act wasn’t law when Re B was decided. Who knows what the decision in Re B would have been had it been….
and here, your recipient had no capacity and the DWP must have been aware of that due to them now having got an appointee acting for her.
and your post leads to the assumption that the lady is not paying her care home fees herself. if she is, then she should still be getting AA .....
Thanks Claire.
The appointeeship was confirmed on the 1st of September, and the overpayment period pre-dates it, however the fact she has been put into a home in July for alzheimers is enough for me to propose mental incapacity for the recovery period in question.
Im not hopeful for the reasons Nevip proposed, however like i said earlier : Nothing to lose by writing a letter.
I told the appointee that i couldnt guarantee the overpayment being written off but i would try anyway.
I know that such things clog up the system and can cause delays for others however i feel its only fair to do my best as the decision is unfair in my opinion.
On a separate note the overpayment letter has said that “in this case we will not add the usual civil penalty of £50.00 under the circumstances”
Is this a ploy to make them look like the good guys, thus dissuading people to appeal?
Or have i been watching too many conspiracy videos on Youtube?
[ Edited: 20 Nov 2013 at 02:54 pm by benefitsadviser ]However, I did say “let’s say, for the sake of argument, that Equality Act and/or Mental Capacity Act arguments are doomed…” I’m not convinced they are. If it was my case I would be trying to construct an argument around s149 of the Equality Act 2010 (see below). Submissions under its predecessor s49A(1)(d) of the DDA were not argued before the court in B so the issues have not yet been fully tested. I’d try and take this as far up the appellate process as I could.
I’m not sure that any ‘capacity ’ argument would be fruitful but can think of another approach.
It is axiomatic that a claimant cannot ‘fail to disclose’ something they don’t actually know about and, at least a until an appointee is in place, this inextricably links the duty to disclose with the claimant’s PERSONAL knowledge of their situation. Alzheimers often causes severe memory loss, including lack of orientation in time and place and I was wondering if it was the case that the lady was sufficiently disorientated to have ‘lost’ any knowledge of the fact that she got AA in the first place or that the place she was now staying in was in fact a care home which she either was or wasn’t paying for herself.
I would see this as distinguished from ‘B’ as the arguments in ‘B’ concerned the capacity to realise that a disclosure should be made and to make the disclosure, not an ignorance of the actual facts of the change in circumstances.
I’m sure others have tried this and I think I am probably clutching at straws but surely there must be some judgement made as to what the claimant actually knew before any judgement can be made as to a failure to disclose
Im not sure to the exact degree of disablement, but the fact she has to live in a home and cant handle her own affairs (has appointee) is a good indicator. She lived in her own home for many years, and it got so bad she didnt know how to find her own bathroom.
Im not sure to the exact degree of disablement, but the fact she has to live in a home and cant handle her own affairs (has appointee) is a good indicator. She lived in her own home for many years, and it got so bad she didnt know how to find her own bathroom.
I wonder if there is a Mental Health Assessment or something like that that sets out the degree of memory loss etc?
I just6 saw this in the latest DMG, it only applies to ‘new JSA’,‘New ESA’ and UC but it is quite indicative
D1138 Where it is claimed that a claimant is not responsible, the DM should consider the following points.
1. Non-responsibility is limited to those who are blind, illiterate or do not fully understand a particular form they have signed. This may be caused by poor education, illness or mental incapacity and can be temporary or permanent.
Unfortunately, I don’t think the Equality Act will assist.
http://www.legislation.gov.uk/ukpga/2010/15/schedule/22/crossheading/statutory-authority
s212 General interpretation
“enactment” means an enactment contained in—
(a)
an Act of Parliament,
(b)
an Act of the Scottish Parliament,
(c)
an Act or Measure of the National Assembly for Wales, or
(d)
subordinate legislation;