Overpayment and Mental Health

Hi

I have a client who has an overpayment of £40K due to being over the savings limit from 2016 to 2022.

DWP and our local council are pursuing the overpayment so we have been asked by the clients social worker if we can get the amount owed reduced through a potential appeal.

Client suffers with severe mental health issues and had no idea about the savings limits and rarely spends any money. He has the belief that the money from the DWP was paid to him due to him being “a vigilante”. Unfortunately, he does not have any appointee and there has only been very recently involvement from social services.

Is there any arguments we can make on mental health grounds?

Any advice would be greatly appreciated.

Thanks

Adam

I’d never say never, but…...

1. when you refer to “our local council” I assume you are referring to a HB overpayment? Those are always recoverable in law unless caused by official error - i.e. by a mistake on the part of the local authority. There’s nothing in your post to suggest official error might be in play here.

2. for DWP overpayments (not overpayments of UC, which are always recoverable) it’s a two step process in terms of working out whether there might be a basis for challenge;

A. was the claimant given clear and unambiguous instructions of matters he needed to disclose to the DWP? (I’ll return to this below) If he was given such instructions and then did not disclose - and that is what led to the overpayment, then that is an end of it and any overpayment is recoverable. The state of his mental health and what he was able to comprehend of his obligation to disclose are not relevant factors in this scenario.

B. if the claimant was not given clear and unambiguous instructions, then an overpayment will still be recoverable if the claimant could reasonably be expected to know a particular change of circumstances might affect their entitlement to benefit and then did not report that change. In such a case, it is what the claimant (not claimants in general) could have reasonably been expected to know that matters - so in this situation, his mental capacity will be a relevant factor and might allow a challenge.

So the first step is trying to establish what “clear and unambiguous instructions” the client was/has been issued with. For ESA, for example, this will be the ESA40 leaflet - which is generally sent with the first award letter and then with each annual uprating letter. It’s important to recognise that the leaflet has been amended several times, so you may be looking at several different versions of the leaflet.

Can the DWP show - on the balance of probabilities - that the client was in fact issued with the leaflet? It may take an appeal - and an examination of the DWP’s response/submission - to work this out.

If the DWP can show the leaflet was issued - are the instructions about capital limits and what he must disclose if his capital increases clear and unambiguous?

If the debtor has severe mental health issues I would first obtain a Mental Health Breathing Space. This is a straightforward process as long as the client agrees and signs the proforma. Just needs to be countersigned by an AMHP who are more approachable these days because of the Debt Respite Scheme. I’m pretty sure DWP overpayments qualify.
The MHBS does not have a time limit and continues whilst the AMHP agrees that crisis treatment ( in the community also ) is taking place.

https://www.gov.uk/guidance/stop-and-restart-deductions-from-benefits-under-the-debt-respite-scheme-breathing-space

Don’t forget to check that the diminishing capital rule has been applied to the HB overpayment.  This may reduce the amount recoverable by assuming that the client would have used some of his capital to pay his rent if he hadn’t been receiving HB.

I have been looking at this post and have recently had a case before a tribunal that presented an argument on the basis of point B (as given in post by past caring).
The matter related to an ESA overpayment decision of approx 12,000 (due to excess capital from 2014 - 2019 ) for a deceased client who had a chronic memory disorder arising from ARBD ( alcohol related brain disorder). 
In the DWP’s submission , their argument is that the overpayment is recoverable because he was provided with clear instructions when he was sent an ESA 40 leaflet with every uprating letter. They provided two generic copies of uprating letters,  a computer record showing numerous types of letter issued and two versions of ESA40’s (2009 and 2012) were provided. From the computer records, it only showed one uprating letter but no record of dates.

The tribunal adjourned the hearing for DWP to provide documentary evidence as the systems records were inadequate. No evidence was provided. Nonetheless, the argument continued on the grounds his mental health should be considered as a significant factor. Unfortunately, the tribunal determined the overpayment was recoverable even though it was accepted he was a vulnerable adult with a chronic memory disorder and requested the DWP to waive recovery due to this .

Was this the correct approach? Should the tribunal ought to have determined that it was not recoverable if his chronic memory disorder had been accepted ? I have now requested a statement of reasons but my further questions are -  how do I proceed?  Are there any grounds for a further appeal ? Do I leave it for DWP to waive recovery? If so , will the DWP follow the tribunal’s request or would it need to be requested in writing? And,what are the chances the DWP will waive recovery?

“In the DWP’s submission , their argument is that the overpayment is recoverable because he was provided with clear instructions when he was sent an ESA 40 leaflet with every uprating letter. They provided two generic copies of uprating letters,  a computer record showing numerous types of letter issued and two versions of ESA40’s (2009 and 2012) were provided. From the computer records, it only showed one uprating letter but no record of dates.”

See CIS/3486/2007

Further to what Paul says above;

With this particular type of case, the DWP has to show three things;

- that the instructions were clear and unambiguous
- that (on the balance of probabilities) they were sent to the claimant
- that (on the balance of probabilities) they were received by the claimant

This is important because it is one of the few scenarios where it isn’t enough for the DWP to show that a particular document was sent, the tribunal also has to be satisfied that it was more likely than not received.

Forgetting for a moment the large amount of post that is received in the Post office but is not delivered, I have some first hand experience of how this mail shot stuff works. Vast batches of uprating letters are printed. The process of mailing them out is mechanised - the letters go into a hopper and are folded, the INF4 leaflets go into another hopper and the two run along a belt and are automatically inserted into envelopes. Sometimes (with some degree of regularity) the documents in a hopper catch or run out, resulting in an envelope with only an INF4 or an envelope with only the letter. The latter will actually get sent out and be delivered, the former will obviously not be (and are probably recycled).

Further, I have a few long-term clients who for reasons of both illiteracy and anxiety, don’t open their post - they bring it to me when they come. Between them, I’ve probably opened 12 or 15 annual uprating letters - and a good 10% do not contain the INF4/ESA40 leaflet etc.

This is evidence of my own direct experience, so I have argued it in appropriate cases I’ve dealt with (i.e. if we’re looking at an overpayment over a number of years and the DWP can produce evidence of uprating letters being issued each year, it’s going to be something of a stretch to argue that none were received/none contained the information leaflet) but those arguments might not be available to all reps, but I nevertheless think there are two potential points here, the second of which might be the strongest in any potential appeal to the UT;

1. We’re looking at an overpayment covering a 5 year period. During that time, the DWP has been able to produce evidence only of one uprating letter and information leaflet being issued. On what basis/evidence did the tribunal find as fact that this particular letter was actually posted and received? Particularly relevant to that question is the fact that uprating letters are supposed to go out every year, but the DWP’s evidence points to this happening only once in a 5 year period - isn’t that somewhat suggestive of the kind of poor administrative practice discussed in CIS/3486/2007 by Judge Mark? There should have been 5 letters generated and issued, but it appears there was only one - why then should we believe that single letter made its way to the post box?

2. Even assuming the uprating letter and ESA40 was posted and delivered, the overpayment covers a 5 year period from 2014 - 2019. To which of these years does the DWP evidence relate? If it was 2014, then the appellant would also be caught for the years 2015 - 2019. But if it was, say, 2017, on what basis did the tribunal decide that there was a recoverable overpayment for the years 2014 - 2016? - i.e. for those years prior to the appellant having been issued with clear and unambiguous instructions?