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UC, PIP etc. (DA) Reg. 9(b) ignorance or mistake to a fact & PIP
In Sweet & Maxwell Vol III at p739 the commentary to Reg. 9. implies that as this provision does not reproduce the complications of SS&CS;(DA)Reg. 3(5)(c) & (d) the question of whether a claimant can reasonably have been expected to be aware of the material fact etc. in the case of PIP only arises in recoverability decisions under SSSA s71.
However it seems to me the purpose of Reg 9 it to removed from PIP claimants the protection afforded to DLA/AA claimants by SS&CS;(DA)Reg. 3(5)(c) & (d) - see CPAG p1281. I cannot see how it can then arise after all under SSAA s71.
However I would very much like to make that argument in a PIP case.
It is a case where the SSWP is arguing the classic ‘the work undertaken is not compatible with the level of PIP awarded’ and is relying on the claimants misrepresentation of the extent of their limitations to argue ignorance/ mistake to a material fact under Reg 9 and misrepresentation under s71.
There is some entertainment to be had in this case as the original PIP award (migration from DLA) was based on a HCP opinion (rather than the claimants self assessment on PIP2 alone). Its difficult to see how the SSWP can argue the cause of the overpayment (if there was one) was due to any misrepresentation by the claimant (as may be the case in DLA/AA) rather than an inadiquate HCP report (given that the SSWP normally submits in PIP appeals that HCP reports are ‘infallible’)!
I’m sorry if I’m wandering into “grandmothers/eggs” territory and I may have misunderstood the question.
Whether the decision can be revised and whether the resultant overpayment is recoverable are different questions - under the old regs, then you might be able to argue that there was no power to revise because of a lack of awareness on the part of the claimant etc - so there is no overpayment, recoverable or no.
That argument is gone now - because the SSWP does not have to show an awareness on the part of the claimant in order to revise - but that still leaves the question of recoverability. So you are still going to be able to make some of the same arguments, just at a later stage of the process (and maybe re-framed a bit). The practical difference is that the revision might still have some prospective effect and the money will show up on official stats as an overpayment which is not recoverable rather than not being an overpayment at all.
However it seems to me the purpose of Reg 9 it to removed from PIP claimants the protection afforded to DLA/AA claimants by SS&CS;(DA)Reg. 3(5)(c) & (d) - see CPAG p1281. I cannot see how it can then arise after all under SSAA s71.
Well perhaps that was the intention, perhaps not. But who cares? The SSWP cannot, by Regulations, remove a protection granted by an Act of Parliament.
[ Edited: 7 Mar 2019 at 07:44 pm by Elliot Kent ]So you are still going to be able to make some of the same arguments, just at a later stage of the process (and maybe re-framed a bit).
I think that is the difference. Arguably SS&CS;(DA)Reg. 3(5) provided greater protection (at least in some cases - i.e. gradual reduction in care/mobility needs), which is now removed, than possible arguments under SS(C&P) Reg. 32(1A)&(1B) - now UC etc (C&P)Reg.38(3)&(4). Its horses for cases!
(No) doubt all will become clear in the particular case (assuming the SSWP can provide a coherent response to other decision making / evidence issues in the case!).