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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Overpayment appeal

JayKay
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Benefits adviser - Penwith Housing Association, Penzance

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Joined: 14 July 2010

I’m currently assisting a client with an ESA overpayment appeal.  She says that she contacted the DWP to find out how many hours her partner could work before her benefit was affected, but the DWP say that they have no record of any contact.

In the SoS response, they have provided a print out of the contact that the client has had with the DWP.  However it is full of acronyms and short-hand, so it is very difficult to know what the conversations were about - so for example one entry reads - clj/cc 10.40 payment query *jp*. (And they only document incoming telephone calls - not letters or callbacks)

I vaguely remember a commissioners decision / upper tribunal decision which stated that if the DWP provided print outs they should also provide explanations for any acronyms etc used - but I can’t seem to find it - can anyone point me in the right direction.

The entitlement decision itself also just says that she has a ‘reduced rate of entitlement’ without any details of her new entitlement.  I know in the past it was possible to argue that this is not a valid supersession decision, and so it was not enough to satisfy Section 71 para 5, but I have a feeling that I saw reference to a decision that restricted challenges on that basis.  Again if any one has that decision I would be grateful.

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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R(IS) 2/96 said that computer evidence incomprehensible to anyone unfamiliar with the system and the jargon used was insufficient on its own to demonstrate the necessary entitlement decision underpinning an overpayment: the submission needs to explain what it all means, or a PO should turn up and explain it at the oral hearing.

In your case DWP is not relying on these jargon-riddled records to prove the existence of a valid decision: they have been included as evidence that the appellant did not make the enquiry she claims to have made.  She could arguably turn that to her advantage: if there is a record around the time she says she made contact, she could invite the Tribunal to conclude that DWP has recorded the event in its own secret language.  In the absence of any coherent explanation to the contrary, the Tribunal is entitled to conclude that she did make the call and did disclose the partner’s earnings, as indicated by the presence of an entry on CIS reading “clj/cc 10.40 payment query *jp*” or whatever.

My favourite ever CIS record: “FILE IN TAMBOUR”. Answers?

BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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Aw, you’ve heard it!

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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Don’t think you need case law for this sort of stuff. Just write in and ask for a direction that a submission is made in writing either translating the document or giving explanations which would allow translation. Argument can be supplemented by planting a reminder of DWP unreliability in producing a PO when requested as opposed to when they feel like. 

The thing is though that said records aren’t completed by one person so inconsistency, including a failure to record completely, is in-built. In that sense it doesn’t matter what’s said. You can’t prove a negative but, if you can show that DWP have previous records of the claimant contacting them, it makes it incredibly difficult for them to explain why the claimant wouldn’t on this specific occasion.

Better argument for me has always been to extract every last detail from the claimant. Roughly when was the call? Where did they find the number? Did they have to move through a menu system? Was the person they spoke to male or female? How much detail did they give them? What precisely was the answer?

A tribunal faced with that level of detail and looking at credibility will usually fall on the side of the appellant.

JayKay
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Benefits adviser - Penwith Housing Association, Penzance

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Thanks for the case reference.

My second point was not referring to the electronic print outs.  The copy of the supersession letter in the bundle states that ‘our new decision is that you are entitled to a reduced rate of ESA for the period…. to ....’  The overpayment letter just gives the total amount of the overpayment.  We repeatedly asked the DWP to explain the calculation of the overpayment, but we didn’t get a reply.

The bundle of papers does include a breakdown of earnings / ESA entitlement along with an apology that this was not provided before.  But I’m not sure that is correct, as they are including earnings from a different employment when calculating the overpayment, which they had definitely been notified of (they sent me the evidence of income that the claimant provided when I request copies of the original claim form).

Have they tightened up on the rule around an overpayment not being recoverable if the DWP hasn’t identified and superseded all the operant decisions during the overpayment period? From what I remember a valid supersession decision has to state the new entitlement figure, which this one doesn’t - and the claimant had no idea what the new entitlement was until the bundle was received.