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IS overpayment and learning disabilities
I have a client with severe learning disabilities who was claiming IS as single mother. The children were taken into care but she still recieved IS as no one informed DWP. Once the child reached 14 her IS stopped and the DWP then realised that she should not have been eligible for IS for several years.
She is now on ESA- support group- but the DWP is trying to recover £30K overpayment of IS. There is obviously the arguement that there was no loss to the public purse in the money paid for the personal allowance and disability prem and the IB the client would have been eleigble for. But the client recieved money for children she was no longer career for also!
Does anyone know of any case law on this or can they suggest any legal reason why the money should not be recovered. I was thinking along the lines of mental competent?
thanks
I don’t think it will be of much comfort or assistance but have a look at R(IS)9/06 (aka sec of State v B).
Arguments for not recovering since this case often involve whether or not the claimant was unequivocally told that the change of circs was something they should report although I have once or twice thought about submitting that a claimant with some type of mental disability may have indeed been unequivocally told about their responsibilties to report things but were unable to retain that information so that they were not in fact aware of it at the time the change took place. Claimants with very settled claims only get an award notice (which usually has the warnings about disclosure included somewhere) about once a year so this argument may have more validity than it perhaps did when claimants had an order book to sign each week which confirmed there had been no changes since the last order was signed. I have never actually submitted this in an appeal but I can’t help but wonder if there is at least a small chance it may be accepted if it was accompanied by some conclusive medical evidence - i don’t know what anyone else thinks (I bet someone has thought of it before!)
and i do think that the mental capacity act needs looking at in this context - Re B was before it came in ...
Starting point is showing your client did not recieve unabigious instruction as outlined in case Hooper v DWP reported R (IB) 4/07.
Then you have a chance with as the argument left for a recoverable overpaymenmt from your client is if they were not clearly told of the need to disclose,
that they did know about the fact and the fact was a CoC and it was reasonable to expect them to know that your benefit might be affected, and you did not report the fact as soon as reasonablt practicable. (CPAG 1049 Regulatiobn 32 Claims aqnd Payments Regulations)
In other words what did the Department in particular send to YOUR client. Can they show what was sent. Not what they thought might have been sent.
Once you can show that no clear instruction was given you can get arguments about health individual circumstance and perceptions taken into account.
Also check if the department were informed by another agency, person or your client via the record of her claim. There is case law on departrment links latest case CG/2739/2009
Also perhaps request it is written off on grounds of circumstance.
Perhaps as well take financial advice on dealing with the debt permantly.
Recent news is reform of this area of law that ‘all overpayments of universal credit, jobseeker’s allowance and employment and support allowance to be recoverable. Similarly, all payments on account and certain hardship payments will be recoverable. The clause will ensure that overpayments of all other benefits remain recoverable, as they are now, but only in circumstances in which there has been a misrepresentation or failure to disclose.’
Looks like bankruptcyu will be the only option for large overpayments and certain clients
[ Edited: 24 May 2011 at 11:14 am by ikbikb ]here’s a link to rightsnet news story on new power to recover overpayments -