IB overpayment - no signed application

My client told the phone interviewer that he had an occupartional pension when he applied for Incapacity Benefit but the interviewer put down that he didn’t.

Later this was uncovered by the DWP who declared a substantial overpayment.

My client insists he told the interviewer that he did get a occ pension and has appealed.

Looking through the papers for the forthcoming tribunal I noticed that the DWP haven’t included the telephone transcript which he is supposed to sign as being correct a few days after the phone interview, only the unsigned computer . My client says he has never seen the transcript or been asked to sign anythuing after the phone conversation.

I think: no signed application means he can’t be held accountable for any errors on the application (therefore no misrepresentation, therefore no overpayment) but I can’t find a regulation to hang this argument on

Anyone got any ideas or similar experiences?

Thanks

Dan

If there is no reason for questioning the claimant’s credibility, the Tribunal should accept his memory as true.

In decision CP/3037/2004, for example, the Commissioner accepted the claimant’s memory about having ticked a box in a form, despite the fact that, he said, memory can play tricks:

22…Thus, I am satisfied that the claimant genuinely believes that he did tick the crucial box… However, I must take account of the tricks that the memory plays on all of us and the natural human tendency to come to believe what one thinks must have been the case. Here there seems no reason why the claimant would not have ticked the box on the BR1 form to claim for his wife, but he might have omitted to do so by mistake. The line between remembering what one meant to do and what one actually did, when there was no reason not to do it, is one that is very difficult to be sure of. But, taking all that into account, I find nothing sufficient in the factors discussed above, either independently or in combination, for me to reject the claimant’s evidence as not credible.

21.  I therefore find as a fact that the claimant did tick the box…

The fact that your client was not asked to sign anything and did not receive the transcription will play in his favour because the DWP has nothing to provide against his testimony. On the other hand, if the Tribunal refuses to believe to your client’s testimony they must give sound reasons for this.

Without hesitation, I would request a full, enredacted, copy of the recording of the telephone call.  Ask the Tribunal for a Direction if necessary.

I am aware that part of the terms of posting are that personal posts should not be made.  However, the following may help in the context of the OP..

From a personal experience of making a claim by phone (within the past 2 years), I can say as a fact that answers given verbally are not necessarily the answers recorded.  Further, any assurances that explanatory notes would be made in relation to any qualified answers should be taken with the largest pinch of salt imaginable.  I was so concerned about the manner in which the phone claim proceeded, I refused categorically to agree to the verbal declaration at the end of the call.  The DWP then sent a full copy of the “Customer statement”, along with a written declaration to be signed.  I amended parts of the Customer statement and sent THAT along with an amended written declaration.  The declaration was amended to make it clear it referred to the AMENDED Customer statement in conjunction with the answers I had given during the telephone claim process and no account should be taken of the original Customer statement.

I was very fortunate to have enough background knowledge to avoid being bull-dozed into agreeing to having given answers I had not.  I can only speculate at how many claimants not so lucky as to have such knowledge may ultimately end up being accused of failing to disclose, or misrepresenting, relevant facts.

One other matter:  when discussing this later, the DWP insisted it kept recordings of all calls relating to telehone claims and, therefore, there was no possiblity of me being taken out of context (yep, I really believed that assurance).  On that basis, the DWP cannot have any excuse for not being able to produce such recordings.

I am happy for this post to be reproduced in the event you feel it is of any use to your client’s case.  All I ask is that you reproduce it in FULL and not in selective chunks.

Thanks for your advice

Best wishes

Dan