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£35K income support overpayment
Apologies for not much info but looking for any good caselaw that could help a caller.
Client is waiting on a hearing date for an income support overpayment going back 4 years totalling £35K. She was receiving income support with a child premium and when she reviewed her income support in 2012 she did not state that she was receiving child tax credit. The client has looked through the review form and there is no mention of child tax credit in the claim form and one the page where is says “any other income” she took this to mean wages etc. Child Tax Credit did not feature in the list of benefits to tell us about.
She did not fail to disclose a material fact as she wasn’t asked about CTC on the form but if anyone has any ideas or knows of any case law that would be much appreciated.
Thank you :)
Have had similar over the years and tbh you’ve pretty much made your own case.
It depends on what is said on the A2 review form - the current NI version is the only one readily available online and where it says “We need to know if you, your partner, or anyone else you are claiming Income Support for, have any other money coming in” details -
Money coming in includes, but is not limited to
l any training allowance
l Statutory Sick Pay
l Statutory Maternity Pay
l Statutory Adoption Pay
l Statutory Paternity Pay
l other benefits, allowances and pensions that are not from Social Security
l Working Tax Credit
l Child Tax Credit
l fostering fees or allowances
l student grants or loans -
including Career Development loans
l money from a charity or benevolent fund
l payments made in lieu of Concessionary Coal
l War Pension
l money from an annuity
l money from a trust fund.
Appeal papers should include a copy of the A2 review form - if it is the same and she has ticked “no”, it is misrepresentation of a material fact. Are DWP claiming “misrepresentation” or “failure to disclose”? If “failure to disclose”, is it because the review form isn’t available? I can’t see why they would argue “failure to disclose” if the review form is available and does include Child Tax Credit in the “other money” section, unless they are seeking recoverability from an earlier date, in which case they should explain what information they had previously provided to the appellant regarding changes that should have been notified, and why (in view of that information) she has failed to disclose a material fact
The client said that the A2 form did not include child tax credit in the form - she said that she has checked this over and over and that the DM have told her (unsure if verbal or in the decision) that she did not fail to disclose & that there is no element of fraud, just the overpayment.
well if there has been no error there has been no overpayment.
well if there has been no error there has been no overpayment.
Really?
Agree - if it was that simple we wouldn’t be appealing!
The client said that the A2 form did not include child tax credit in the form - she said that she has checked this over and over and that the DM have told her (unsure if verbal or in the decision) that she did not fail to disclose & that there is no element of fraud, just the overpayment.
Checked it ‘over and over’ when and how?
At the time? Or now, because she retained a copy or a copy has been provided to her by the DWP?
And how - in as much as did she go through the form itself ‘over and over’ because she thought that there ought to be somewhere where the CTC should be detailed?
This may turn out to be important in that whilst the client would appear not to have been placed under a specific duty to disclose because of there not being any question about CTC in the A2 form*, she may have been under a general duty to disclose a change of circumstances that she could reasonably have been expected to know might affect her entitlement. In other words, if it was at the time, the ‘checking over and over’ might have the potential to undermine her own case.
* My recollection of what was in the A2 forms 4-5 years back is that there most definitely were questions about CTC. But that’s neither here nor there. In any event, the DWP may not be relying (and may not need to rely) on what was in the A2 - if this is change of circumstances case, she was presumably already receiving both CTC and the IS with a child premium for at least some period prior to the A2 form being completed? If that is the case, the DWP might be able to rely on what was sent out in the INF4 that accompanies annual uprating notices - and might also be able to rely on a consequent specific duty to disclose.
As for what the DM may or may not have said, I’d give no weight to anything that isn’t in writing….....
Thank you, the client’s form is in the DWP submission. She went over it as the overpayment relates to her not informing Income Support at the time that she was receiving child tax credit. Unfortunately do not have anything more as it was a call for advice.
Well that’s something in her favour if there’s definitely no space for a declaration of CTC in the A2 form.
Doesn’t get her past the INF4 point though…..
Only good thing is that there is no INF4 in the bundle…
Certainly a plus, but not necessarily the end of it…....
An appeal about an overpayment of this size ought to get listed for a salaried judge who knows what they are about. They might throw the thing out on the basis that the SoS hasn’t established their case. Which doesn’t prevent the SoS getting its case in order and having a second bite at the cherry. But the judge is equally (actually more) likely to adjourn with directions that the SoS produces the a copy of the INF4 that was in use at the time, together with a print out of the letter history to establish it was issued.
If the rep raises the issue of there being no INF4 in written subs in advance of the hearing, this increases the prospects of the SoS producing it in any response or its being directed to by the judge. If the rep only brings the issue up in oral submissions in the hearing, this may work - but it doesn’t prevent the judge adjourning and directing the INF4 is produced. More importantly, perhaps, if the issue isn’t raised in written subs this can later make it much more difficult to show that it was raised and that the tribunal failed to deal with it - i.e. if the appeal is dismissed and it becomes necessary to go down the statement of reasons/leave to appeal route.
I was being flippant! 😊
well if there has been no error there has been no overpayment.
Really?
Sorry loose language.
If there has been no error by the claimant then there is no recoverable overpayment.
If the client didn’t make a mistake (didn’t fail to report a change of circumstances, couldn’t have worked out that she was getting too much) then any overpayment is not recoverable from her.
If the DWP has made a mistake and paid her too much then that’s official error and since this isn’t UC that means the overpayment can’t be recovered.
Your appeal is against the decision that the overpayment (assuming now that there is one) is recoverable from the client. For that to be the case she must have done something wrong—not reported a change of circs, misunderstood the form, not read her award letters and realised she was getting too much.
I know this, was after caselaw. Thanks for your response. Merry Christmas!!