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Mandatory Reconsideration for an overpayment caused by an ESA adviser giving incomplete advice on DLA
And if nothing else, this thread goes to show the importance of getting the issue in front of a tribunal. It seems to me to be one of those subjective cases where everything hangs on the circumstances and the client’s credibility as a witness. I really wouldn’t want to call it either way.
I’m going to call it then 😊
This is a claimant win.
I would take a case like this every time and challenge it every time. Our job must be absolutely to advise those people who have no chance that they have no chance but, where a case is winnable, to at least try and win it. For the most part they do win but you have to take them in the first place and understand the relevant law and caselaw.
It’s absolutely a credibility issue but people seem to confuse this with volume of evidence i.e. a small amount of evidence means the claimant cannot establish credibility. I think that’s a complete misunderstanding of the balance of probabilities. Seen it come up again and again in co-hab cases and similar. It’s not how much evidence you have. It’s whether it has an internal logic; is not inherently contradictory and… is more than DWP have.
I have won cases like this where the claimant could remember no more than they saw a large, blond woman in a specific building within our Council after lunch one day a few months back. I established that the service in question did indeed have such a person (several in fact) but, more importantly, that one of them did “duty” afternoons only in that specific place. That was all that was needed.
DWP counter argument was pretty much in this case.
I respectfully disagree Tony (yes, I know, AGAIN 😊). Sorry.
Sitting in front of an adviser and not asking the question disadvantages the claimant. They then couldn’t argue there had been a failure to cover the point. Once the question has been asked then it needs to be borne in mind that the claimant establishes credibility by simply saying something they don’t need to say i.e. that there was silence re: DLA. It’s hardly in their interests to be that honest in theory. That’s why tribunals always buy into the credibility of even the smallest amount of evidence in this sort of case. It then comes down to how that silence is interpreted.
On the DWP side there is only an argument that could best be summarised as “well, they would say that wouldn’t they”? It’s a credibility losing argument as it tries to talk in general terms as to how any reasonable person might interpret silence. However, the case is not about the man on the Clapham Omnibus as we know. It’s a specific individual and context is everything. In this case we have a relationship with a personal adviser. You don’t challenge them without understanding the consequences and you quickly understand to read between the lines including what that silence means to you. Neither the tribunal nor the DWP have any means of contradicting that without resort to sweeping generalisations which will, of course, be a fairly straight forward error of law. The only solution for the DWP is to wheel the PA in. Not going to happen.
The DWP PO of course won’t actually be there, which isn’t going to help them an awful lot on the old credibility front. R(SB)33/85 is exactly the basis of my arguments on such things. I can’t remember the last time, when put specifically to an appeal tribunal, it failed as it comes back, once again, to that basic question of “well what else, in all the circumstances, would you have had the claimant do based on what they did and knew?”.
I would also be putting the alternate scenario to the tribunal in order to assert, if you like, my credibility as a rep. in terms of not looking like I’m avoiding any of the difficult questions. So, I would ask a tribunal to imagine what would have happened if an answer had been forthcoming. What do they think it would have been and what’s their evidential basis for saying that? Any assertion re: accurate advice on disclosure to DLA could of course be referenced in advance in a written submission asking what training PAs receive etc. That would give a DM ample opportunity to address the issue. Having done this, I can assure you they decline the opportunity and lose further credibility points in front of the tribunal. I suspect this is because a specific admission of the small amount of training received by Personal Advisers et al instantly answers that the best answer would have been “I don’t know. I’ll need to ask someone else.”.
That’s why I say I would always take such a case and would see it as a routine win. Must have done high 2 figures of these over the years and Hinchy has yet to rear its head either from DMs, POs or the tribunal by the way.
There’s no disagreement here, just varying degrees of confidence in the outcome.
You say the DWP has only an argument disputing the claimants word.
But on the facts as presented in the OP they also have a clear argument that there was a failure to disclose in accordance with established principles - disclosure to the correct office in accordance with the instructions given by the awarding office.
The only argument is whether or not disclosure was reasonably to be expected given the client’s contact with the ESA official and what he might or might not have reasonably believed.
It would seem that you are far more confident than most at these cases, Mike. If you have a submission you can anonymise and share that would obviously be very helpful.
I tend to not have template submission. Each case on its merits and all that. However, I think I’ve probably disclosed the whole argument here :)
I would agree that the argument could be tricky to make in light of recent decisions, but isn’t it arguable that you could use R(A) 2/06 (p.89 vol.III SS Legislation), in which the Commissioners considered the extent to which oral representations by an officer of DWP can have an impact on the statutory duty to disclose? Although slightly different in that this case concerned a positive statement of intent from a visiting officer regards what action would take place in relation to an AA claim ceasing on entering residential care, the circumstances aren’t dissimilar i.e. a claimant asks a DWP officer what they need to do and is given incorrect or partial information in response, leading to an overpayment.
The Commissioner concludes that R(IS) 5/03 has survived the CoA decision in ‘B’ and that the particular duty to disclose can be modified on the basis of an oral representation from a DWP officer (although he didn’t accept it in that appeal). The commentary goes onto to recommend that attention is also paid to certain paragraphs of another case, CA/1587/2011 ER v SSWP (AA) (2012) UKUT 434 (AAC), with these sections in particular pertinent (my emphasis):
38. That case [R(A) 2/06] was in many ways very similar to the present, since it also involved an alleged failure by a daughter, acting as appointee for an elderly parent, to notify the appropriate office of the Department of Work and Pensions that the claimant had started to receive local authority funding in a care home. It was accepted by the appointee, in the light of Hinchy, that the starting point was that disclosure should have been made to the Disability Benefits Unit, but she argued that the ordinary duty of disclosure was modified by what had occurred at a meeting with a “customer liaison manager” held for the purpose of discussing nursing home fees. In paragraph 14 of his decision Mr. Commissioner Rowland accepted as a matter of law that the duty to disclose may be modified by an oral representation made by an officer of the Department of Work and Pensions to the effect that further disclosure is unnecessary.....
39. The principle that oral modification is possible applies equally in the present case. The question is whether, on the facts, a modification is shown. In my view, R(A) 2/06 is not decisive here. In that case, the evidence was that the appointee was told by the customer liaison manager that the visit would initiate any action required with regard to her mother’s benefit changes when council funding started and there was no need for her to take any further action. She said that she could not remember whether attendance allowance was specifically discussed or whether she was told that the claimant would cease to be entitled to attendance allowance.
42. In all the circumstances, I conclude that the question whether there was an oral modification of the ordinary reg. 32 duties should be considered by a new tribunal which will also have the opportunity of considering the material produced by the Secretary of State relating to the duty of disclosure and any relevant evidence the daughter and son-in-law may give. There was an error of law in the tribunal’s failure to address the issue and I do not accept the Secretary of State’s submission that, in effect, it was immaterial.
I can’t read anything in B that expressly changes this approach. In this ESA/DLA disclosure case, the claimant contends that they have specifically asked about what happens to both benefits if they enter hospital, apparently in relation to the knowledge that they are under a duty to disclose relevant changes, and is instructed that they do need to report to the ESA department, but not the DLA section (although the absence of an instruction is not the same as being told “No you don’t need to do anything…”). There is the duty of on-going disclosure to deal with as well of course….