£26.000 overpaid DLA, care home issues

Mike, it all sounds very depressing, Tribunals don’t sound any fun these days, in my current role I don’t go to hardly any hearings, not done any since pre virus, it used to be a pleasure to do them and battle with Judges who were awake to the issues and law, sounds all very tiresome if Judges are as hopeless as suggested.

I feel very much as you. The only battles nowadays are literally to explain the law as is. One of the pleasures of phone hearings is knowing you at least don’t have to see the mix of confidence/arrogance and ineptitude.

I was always the rep. who did subs. rarely. Say when a matter of some complexity needed to be walked through. Nowadays it’s pretty much every case on the basis that when you get a judge absolutely confident in their wrongheaded view (a barrister thing from my perspective) to the extent that you know they won’t even record basic facts accurately you can at least use the sub. to say “I cannot be held to have conceded x when I wrote y here” and head off to UT confident that you’ll get another one of those increasingly funny despairingly toned decisions sending you back to FTT.

There are honourable exceptions of course but nowadays they really are exceptions.

Mike Hughes - 20 July 2023 12:59 PM

Nice summary of the latter at https://www.rightsnet.org.uk/welfare-rights/caselaw/item/claimant-entitled-to-assume-decision-made-on-benefit-award-would-be-communicated-to-other-relevant-benefit-offices—house-of-lords-judgment-in-hinchy-no-longer-applicable.

The reality for me is that tribunals nowadays are more than open to the fact that Hinchy has zero applicability. In part this is because things have moved on but in part it’s because the push to recruit barristers has left us with tribunal judges gifted the triple whammy of often not knowing their way around the law, guidance and especially the case law.

I was going to flag this as a case that took a different view to Hinchy but wasn’t completely convinced of it’s relevance to this situation.

In SK, the client’s DLA award was terminated and there was an automatic electronic notification to the ESA department to that effect, hence no lack of disclosure by the claimant as DWP already knew the fact

In this case, you’re looking at an argument that calling a different department and telling them about a care home admission means another part of DWP should have been notified and then acted upon that call - we don’t even know what was discussed in that call, so as I said above, I think it’s arguable but it’s much more of a stretch imo.

And of course, as i keep saying, all completely moot until such time as DWP make the relevant decision.

As Paul mentioned earlier, if DLA care component was taken into account during the financial assessment for social care charging and this results in a recoverable overpayment, then a request for an updated financial assessment should be made. If DLA care has been taken into account throughout the period, i.e. after it should have stopped at day 29 of a permanent care home placement then any financial reassessment based on income without DLA care will result in a lower charge and the balance repaid to the client by the LA.  That shouldn’t be a problem.

But, do you know how your client’s care home placement is funded and if that has remained the same throughout? It’s worth finding out because it might be a key to establishing if there actually has been an overpayment, the amount of the over payment and/or if an overpayment is down to official error or not.

For example, if the client was self funding their care home placement (typical scenario where capital is above £23,250) at the start they would have been entitled to continue receiving their DLA care. When their money dips below that limit they will then be funded by the LA who will carry out a financial assessment to determine how much to charge for the client’s contribution towards the cost of their placement. In that case if the DLA calculated the overpayment from the date someone went into the care home it would be an incorrect amount.

Diogenes - 20 July 2023 01:05 PM

it looks like a Hinchy defense is the option to go for in my case, all the ducks line up with Hinchy its just whether as you all say a Tribunal can be convinced that there is any merit left in Hinchy

Hinchy doesn’t help your client, it’s the exact opposite in that ithe House of Lords overturned the Court of Appeal’s decision, and held that the claimant’s duty is to make a disclosure to the office handling the benefit claim.

On that basis, therefore, Mrs Hinchy had failed to disclose to the income support office that her DLA had stopped.  So if you raise Hinchy in your client’s case, you are arguing that your client should have disclosed the care home admission to the DLA department and as they didn’t, therefore they have clearly failed to disclose a material fact.

Keith, I have the LA financial assessment details and it has stayed the same, I think they have disregarded dal throughout,
Paul, OK maybe we have to use Hinchy in a different way , not sure how yet, a you say we need the decision on the overpayment first, I have asked the client to discoes to DLA so the ball is now in her court

she has saved al the dla money in a separate bank account so if the worst happens its no loss to her

I think my post re Hinchy has caused some confusion.

The relevance of Hinchy, if it still holds, is that you can’t expect to rely on one DWP dept. to pass on your report of a change of circs. That is true even where we are talking about two involved offices. A fortiori when you have made the report to an uninvolved office.

It is a bad decision, from a welf’s perspective. You are not going to ‘use’ or ‘rely’ on it.

The fact that SK suggests that we might be able to avoid the consequences of Hinchy is therefore helpful. But it doesn’t win the (still hypothetical) case for you because you need to go further still and show that the report to the CA unit, which had nothing to do with the case, fulfilled reporting duties which is a harder sell.

Elliot, yes a vey hard sell for sure, Hinchy is the elephant in the room SK looks rather weak in relation to my case, may just have to see what crawls out of the woodwork at appeal stage, in a similar case years ago I found a note somewhere in the DWP evidence that made it clear they were aware of some kind of change and at the very last minute they conceded ,  something to look forward to

Diogenes - 20 July 2023 11:29 AM

Thanks everyone, my client has POA for her husband who is in the care home, he lacks capacity to act, the LA did say by way of a sentence on the financial assessment from social services that the client should contact DWP and disclose the facts, they gave a tel number to use but for some reason my client did not act on that information but called carers allowance , she did not get carers allowanc its just that she confused dla with CA and assumed it was CA that he husband was getting rather than DLA !!!!!

so it seems 99% of the fault is with my client but she did make some efforts to contact DWP to disclose

Late to the party but if the cl only has POA they are may not be under any duty to disclose anything to DWP. I can only find the 20/21 Sweet and Maxwell, its at 1.88 of Vol iii). If the husband was not aware of the fact ( either by reasons of illness or because no-one had told him) then he is not under any duty either and it is arguable that the overpayment is not recoverable. Much to my surprise I actually won a very similar appeal on these grounds but it was many years ago and may not be very relevant nowadays.

Thanks Pete