Overpayed ESA , disputed change of circumstances

My client claimed income related ESA by phone on 26/06/2014. She declared her NHS occupational pension. On 29/09/2017 she attended a Compliance Interview when she also declared her pension.
ESA claim this is the first they heard of the pension and said she had failed to disclose a change of circumstances which has resulted in a recoverable overpayment.
ESA have told her that the record of her phone call has been destroyed.
She has appealed and has a tribunal hearing next month.
She will claim official error but what are her chances it’s a “she said, he said” situation.
Also does anyone know how long should they retain phone records.
Any thoughts appreciated

If she was receiving her NHS Pension at the point that she claimed ESA, it is not a matter of “failure to disclose” a change of circumstance, but whether or not she misrepresented the fact that she was receiving the pension. What evidence has been included in the papers of the claim statement she made at the outset?

It isn’t a case of “official error” as such - either she misrepresented a material fact or she didn’t. I don’t think the phone records will still be held at this point.

If the DWP is focused on “failure to disclose”, that needs to be addressed

There is no evidence in the bundle of what she said on the phone when she claimed as the phone record was destroyed; they say.

What evidence has been included? The last similar case I had included a print out of what the operator taking the claim had input onto their system.

There is only a table showing when the phone claim was made and the number identifying the operator - no hint of what was entered into the system

Brian JB - 27 March 2019 05:02 PM

What evidence has been included? The last similar case I had included a print out of what the operator taking the claim had input onto their system.

This printout is sent to the claimant to check that the information gathered over the phone has been recorded correctly.

With the caveat that I would recommend reading the decision at https://www.rightsnet.org.uk/welfare-rights/caselaw/item/principles-for-reconstructing-evidence-on-a-form-that-cannot-be-produced , I think that DWP are going to struggle to argue that your client misrepresented the fact that she had pension income when she claimed ESA without any documentation or system record at all of what she said at the time.

If the submission simply talks in terms of failure to disclose a change in circumstances, as I think you suggest in your original post, the submission is incorrect. There was no change of circumstances to report in the immediate aftermath of the original decision. Arguably, if the pension later increased, there may well have been a failure to disclose the increased rate of pension. Without seeing the papers it is difficult to advise or assist fully with your query, but at face value it seems like a weak case for DWP to take to tribunal

Thanks a lot that is very helpful

If the submission simply talks in terms of failure to disclose a change in circumstances, as I think you suggest in your original post, the submission is incorrect. There was no change of circumstances to report in the immediate aftermath of the original decision. Arguably, if the pension later increased, there may well have been a failure to disclose the increased rate of pension. Without seeing the papers it is difficult to advise or assist fully with your query, but at face value it seems like a weak case for DWP to take to tribunal[/quote]

I have seen that done by the DWP previously in an overpayment appeal where the original documentation is no longer available in that they treat the initial pension as official error rather than failure to disclose but if the pension has increased and this hasn’t been reported then they treat this part as failure to disclose change in circumstances! All becomes rather messy because technically it is the only the increase that should be treated as overpaid as they should have had details of the original pension but they will state it is the whole amount!

Unfortunately it wasn’t my case so I do not know the outcome.

Wholly endorse the above but would also add that it’s worth grilling your client (technical term) as to as much detail they can recall about the 2 disclosures. Can they recall the dates; a/m. or p.m.; male or female combatant (sorry, telephony term); the number they rang on the 1st one; from which phone; where they were and so on. The more detail your client can recall then the more credible a witness they become in the face of an already weak to non-existent DWP argument. DWP are largely on a hiding to nothing here though. My opening line to a tribunal would always be along the lines of asking them why they think the claimant would withhold the information at the outset and declare it willingly less than 3 months later.

Putting aside the complexities of welfare reform and cuts one of the great joys of being a “welf” (copyright: Citizen Bradshaw) was actually having to pull apart a well reasoned and arguable DWP case. They no longer seem capable of putting one together. Where’s the fun in that?

I had a similar case a while ago and my client was actually interviewed under caution, although the benefit this time was contribution based ESA .

As it happened he had kept his ” customer statement” that was sent to him just after he made his telephone claim.

The statement showed YES next to occupational pension but no amount.

That made it easy to argue that there had been no misrepresentation and that the onus was on the DWP to make further enquiries as to the amount of that pension

As for failure to disclose, there could be not such failure because there was nothing to disclose once the pension had been disclosed.

Any increase to the pension was arguably not a failure because the DWP had not provided any clear instructions about disclosing the increase.  Even if there had been a failure, any overpayments in consequence of such a failure were trivial because the increase was so small.

The presenting office at the hearing conceded that there could not possibly be any recoverable overpayment