Capital built up due to not spending benefit due to mental health issues

A sad, but not unusual, case

The overpayment will in all probability be recoverable but as you suggest, the issuing authority has the discretion not to recover.  Going through the normal chanels may not get the decision you want, I find that the further up the management line you go, the more willing they may be to use their discretionary powers.  Once a decision on the overpayment has been made, I would ask the local MP to approach the Minister to use his discretion not to recover since in effect there has been no loss to the public purse.  The capital can then be used as reasonable living expenses until it drops below the relevant threshold and a new claim made.

We have had quite a few of these in recent times, sad, I do agree, but it’s mostly recoverable O/Ps as there is no official error involved. If HB is in payment it also creates anothe lot of O/Ps for it, as SMIs, most of the cases are ctax exempt so no CTB.

What we tend to do is advice to repay all the O/Ps, this will depend on the value of O/P and how much of the capital would be left, and then reclaim for all benefits. This in turn reopens the income based benefit and HB. I think this would probably be the best and speediest way forward it also enables entitlement for the future as long as the capital does not keep up accruing.

Surely before makiing any repayment it is essential to check whether the figures are right and to appealt?  In particular, the date that DWP/LA became aware of the capital and also whether a diminution of capital calculation has been done.

Then there is the need for DWP to have evidence of a legally effective supersession (or revision as the case may be) and for evidence of unambiguous instructions to the client to notify when capital increases. 

Hence, it is usually best to appeal any overpayment.  Usually no OP decision is made until after the Interview under Caution.

The scale of error in overpayments never ceases to amaze.  in the last month I have had one overpayment reduced because DWP had included a period when no benefit had been paid, another where they halved an overpayment after finally doing a dimiminution of capital calculation (they had to be asked three times) and another where the wrong earnings disregard was applied.  None of this would have happened if the clients had just paid up.

Hope client in this case has competent criminal law help with the interview and does not go on their own.

Sorry, forgot to mention that this leaflet may be helpful: http://www.neilbateman.co.uk/upload/Benefit_Fraud_Leaflet.pdf

neilbateman - 18 July 2011 04:45 PM

Surely before makiing any repayment it is essential to check whether the figures are right and to appealt?  In particular, the date that DWP/LA became aware of the capital and also whether a diminution of capital calculation has been done.

Yes, I know Neil, and I agree that sometimes O/Ps are not correctly calculated, but I was thinking the best way forward.

All this could prolong things unnecessarily, with the end result still being that they have still been overpaid, as cap still exceeds after diminishing cap rule is applied even for HB, CTB and other benefits inclusive and that would not help the claimant. In most cases the appeal is stretched for very long periods for the exact reasons you have stated[DWP and/or LA going about things the wrong way].

I think the IUC, if indeed that’s the case, is just a waste of time for everyone and a distressing thing for the claimant, I can’t see any way a tribunal/court can say this was a criminal act or deliberate misrepresentation on the part of the claimant. After all the claimant is SMI. It could be a case of negligence by a case worker but even then that would be the case workers fault.

I would probably start off by contacting as many people as possible, Cllr/MPs/Senior/middle managers etc and also check the amounts of O/Ps are correct then take it from there.

SARC - 18 July 2011 01:46 PM

...She genuinely had, until now, no understanding of her income, let alone the level of her a/c balance…..

It is settled caselaw that it is not possible to disclose a fact of which you are not aware.  In B v SOS, B knew that her children were no longer living with her (ie the fact).  They had been taken into care. What she did not understand was the effect of that fact upon her entitlement to benefit (ie the materiality of the fact). 

It was common ground before the Court of Appeal that the test for whether a person knew a fact was a subjective one.  The CA held that once it was shown that B knew the fact, it was irrelevant (to the question of recoverability of the overpayment) that she did not appreciate its materiality.  Hence the overpayment was recoverable, although I understand that an application has been made to the European Court of Human Rights on that issue, leave to appeal to the House of Lords as it then was having been refused by the Court.

On the present info it would appear that the client, unlike B, did not know the fact, ie the amount of her capital.  The test is what the client knew not what a person without her mental health issues would have been reasonably expected to know.  It seems to me that she has a very good case indeed for saying that she did not know the fact and cannot, therefore, fail to disclose it.

That would leave misrepresentation as the only other means of founding a recovery of the overpayment.  Whilst it is possible to make an innocent misrepresentation, eg you sign a form in which you state you have no capital because you genuinely believe that to be the case, and it turns out you have 29k in the bank, it will often depend upon the exact wording of the declaration you sign.  If the declaration is along the lines of “to the best of my knowledge the facts stated in this form are true” then it may be easier, particularly in the present case, to argue that there has been no misrepresentation, ie the person has simply represented what to her best knowledge/ability was correct.

Another issue is likely to be just who completed the claim form(s) and were the answers read back to the claimant.  It might also be a whole different matter if there was an appointee. 

The above applies to the recoverability of ir-ESA and income based JSA not the HB/CTB where, as others have said, the recoverability issue will be whether there was an official error.  However, I agree with Neil that it is important to make all the normal prior checks because as he says they are often not normal at all for the authorities.

Tom H - 18 July 2011 10:29 PM

...it will often depend upon the exact wording of the declaration you sign.  If the declaration is along the lines of “to the best of my knowledge the facts stated in this form are true” then it may be easier, particularly in the present case, to argue that there has been no misrepresentation, ie the person has simply represented what to her best knowledge/ability was correct.

I have consistently advised anyone signing a declaration about “knowledge” to insert the words “...to the best of my knowledge…” if they are absent.  Neither the DWP nor a LA can lawfully refuse to accept such a modification.

OP here, thanks to everyone for their responses, especially to Neil for the link to his leaflet - I have faxed the DWP seeking Prior Disclosure

I am wondering whether to kick up a stink about what I see as heavy handed tactics - given that they have acknowledged that my client is SMI by stating that an appropriate adult needs to be present I consider that an IUC is bullying and probably counter-productive.  Surely they could have started by conducting a less formal interview - with an appropriate adult present, maybe a home visit.  An IUC could then have followed if necessary - although in this case if they have any sense at all they would see from an “informal” interview there is no way this is fraud and would not need to put my client through the stresses of an IUC.

Is there any value in raising this either during the interview, or before it formally starts, or would it be counter-productive to complain at this stage? 

Also, how about handing in a brief written and signed statement outlining my client’s version of events before the interview begins?

Andy Malik did a presentation on IUC tactics to the Social Security Law Practitioner’s Association meeting in March 2007.  My version of the document won’t let me copy it and I can’t do a link on this computer (I’ve reached the limit of my IT skills here).  Perhaps Shawn or Ros could be good enough to do a link for you.

However, may I offer the following tip?  If your client goes to the IUC, as it draws to a close, when the IO asks your client if she has anything further to say advise her to say nothing.  It is here that claimants sometimes feel the need to ‘explain themselves’ a little more fully.  IO’s know this and are listening very carefully for one innocent little remark which can severely damage the client’s case.

nevip - 19 July 2011 09:49 AM

However, may I offer the following tip?  If your client goes to the IUC, as it draws to a close, when the IO asks your client if she has anything further to say advise her to say nothing.  It is here that claimants sometimes feel the need to ‘explain themselves’ a little more fully.  IO’s know this and are listening very carefully for one innocent little remark which can severely damage the client’s case.

Another suggestion and another tip.  Suggentions:  at the IUC, “no comment” to all questions (bear in mind that there is no legal basis to insist on attendance at, specifically, a IUC).  Tip:  Also ask the investigator(s) “...how far behind are you with your targets for prosecutions, on both this type of case and otherwise?”

hi paul

sorry but i can’t find the 2007 sslpa presentation you mention -  do you have it in electronic form? if so, you could perhaps e-mail it to rightsnet (.(JavaScript must be enabled to view this email address)) and i’ll link to forum.

cheers ros

thanks to nevip - sslpa presentation on interviews under caution attached -