Overpayment of PIP from beginning of award and recoverability - Help Gratefully received - Tribunal soon

Any help gratefully received

I have a Tribunal coming up in a week and a half; dealing with both removing someones PIP award from the beginning and the recoverability of that overpayment.

Brief synopsis

client claims PIP.
Client gets dobbed in 2 years later by vindictive ex to DWP fraud line.
Surveillance takes place + interview under caution; but no medical evidence sought.
Surveillance show client walking - seemingly normally.
Decision stopped award approximately 2 years after initial surveillance.
Client accepts that his condition has become better than it was. And in my opinion the Tribunal is likely to find that at the very least he is no longer eligible for PIP now.

Lots of medical evidence that client has had ongoing physical and mental health problems going back to the beginning of The award.
Clients spinal condition is variable and he still has flare ups.

Help needed

As improvement was gradual and mental health problems may have clouded his judgement as too when to disclose change of circumstance. Is there any case law that assists me in this ?
If there were case law that assisted would that help as could the Tribunal just decided to supersede the award from the point when the decided that he was no longer eligible.
IS there any millage in saying that the DWP contributed to the Overpayment by the unreasonable time they took in the administrative process from surveillance to decision. I.e could that be construed as an official error. (from my research so far - I don;t think there is any helpful caselaw.

Thanks for any help Richard - cardiff Citizens Advice

dunno, but

you talk about variable mental state

that can effect capacity

the mental capacity act didn’t exist when Re B was decided, but the MCA applies to everything (nothing in social security legislation to say it doesn’t apply to that)

so you possibly have an argument that

1. he didn’t always have capacity/full capacity, given his mental state, to recognise any improvements - arguable subject to whatever medical evidence you have about that
2. he may have some underlying entitlement because of his variable mental state
3. did that variable mental state affect his memory etc?

If the condition is variable PIP Regs 4 & 7 may be relevant and particularly the issue of pain - see PS v SSWP [2016] 326 - see the PIPInfo website link from Rightsnet for this and other case law.

How does the DWP deal with the issue of pain in its case (particularly if there is significant med. ev. addressing this symptom)? If there is video evidence what does the DWP argue the video reveals about pain?

What grounds for supersession are they arguing - presumably PIP, UC etc (DA)Reg. 23? Don’t forget the protection afforded to claimants by Sch 1 para 13 (which is equivalent to SS&CS;(DA)Reg. 7(2)(c)).

what are DWP arguing re overpayment - failure to disclose (e.g. that his symptoms / management had improved?) or misrepresentation (e.g exaggerated symptoms from the beginning?) - and how does that fit with HCP PA4 reports and other evidence used to make the original award?

How are the PIP qualifying criteria (inc issues like pain & mental health) addressed in the IUC? Its not unusual for there to be next to no relevant questions (because the interviewing officers dont understand the relevant qualifying criteria!) rather they concentrate of the claimants understanding of the rules regarding payments, statements and disclosure. In my experience fraud officers are pretty clueless about the WCA/DLA/PIP qualifying criteria they are investigating!

Dont forget any video evidence must be viewed by the tribunal in the presence of the claimant (and presenting officer) otherwise it will err in law - AF v SSWP (DLA)(no 2) [2017] UKUT 366.

I have a similar DLA case at hearing next week where the DWP claim the video evidence shows my client has no difficulty walking despite a ton of medical evidence from clients consultants etc over many years to the contrary. The video shows a client very obviously moving, resting, stretching etc in a way one might expect a person with and trying to manage pain might do! The DWP argument appears to be that because he had attended a pain clinic pain management course which improved his pain management technique he must therefore have been without any pain / mobility difficulties as shown by the video!

Thanks both for your replies

Definitely helps

Peter Good luck with your DLA Tribunal