Overpayment - failed to disclose a material fact.

Can anyone tell me if the DWP has access to Child Benefit information?  For example; if DWP are paying the family premium in Income Support and child benefit stopped, would the DWP be informed of this or would they have access to this information?

I have a client who was receiving IS with family premium. Her son finished college and claimed JSA.  Client called the DWP IS Department to inform them of this (she told the operator that she thought her child benefit should stop) the DWP operator simply told the client to contact HMRC.  She now has an overpayment and the DWP are insisting she failed to disclose a material fact. 

Obviously she did but they failed to act on the information.  Any idea on how I can challenge this decision?

I am looking at The decision of the House of Lords in Secretary of State for Work and Pensions v Hinchy [2005] UKHL 16, R (IS) 7/05 “makes it clear that to discharge the duty of disclosure imposed disclosure must be to the office administering the particular benefit”.

Any help would be appreciated.

Cookie - 30 November 2011 04:28 PM

I have a client who was receiving IS with family premium. Her son finished college and claimed JSA.  Client called the DWP IS Department to inform them of this (she told the operator that she thought her child benefit should stop) the DWP operator simply told the client to contact HMRC.  She now has an overpayment and the DWP are insisting she failed to disclose a material fact..

Is this not a case of official error? The son claimed JSA so at that point there can’t be a failure to disclose a material fact, as the mother was receiving I/S that included the son in the family premium. She also informed the DWP of the change, hope there are some sort of records of that, but the fact the son claimed JSA, in my view, is enough.

There is a decision, I hope someone can remember cos I don’t at the moment, that covers this.

chacha - 01 December 2011 10:08 AM

Cookie - 30 November 2011 04:28 PM

I have a client who was receiving IS with family premium. Her son finished college and claimed JSA.  Client called the DWP IS Department to inform them of this (she told the operator that she thought her child benefit should stop) the DWP operator simply told the client to contact HMRC.  She now has an overpayment and the DWP are insisting she failed to disclose a material fact..

Is this not a case of official error? The son claimed JSA so at that point there can’t be a failure to disclose a material fact, as the mother was receiving I/S that included the son in the family premium. She also informed the DWP of the change, hope there are some sort of records of that, but the fact the son claimed JSA, in my view, is enough.

There is a decision, I hope someone can remember cos I don’t at the moment, that covers this.

Thanks Chacha - So are you saying that because the son claimed JSA (which was at the same office) the DWP should have been aware of the fact? If anyone can remember the decision or where to find it? It would be very much appreciated!

Thanks once again.

Cookie - 01 December 2011 11:21 AM

Thanks Chacha - So are you saying that because the son claimed JSA (which was at the same office) the DWP should have been aware of the fact?

Yes, exactly.

Unfortunately, you cannot necessarily rely on the son’s JSA claim even if it was at the same office.  It is the IS claimant who has the duty to disclose.  Where a representation by another, i.e. the son’s JSA claim, can be taken to be a disclosure on behalf of the claimant then the claimant is still under a continuing duty to disclose if she has reason to believe that the ‘disclosure’ had not been effective.  If the Department can demonstrate that it was reasonable for the IS claimant to realize that the representation by the son was a not an effective disclosure on her behalf then the duty to disclose remained and any subsequent overpayment will be recoverable.

In other words, unless her IS stops within a relatively short period of time after her son’s JSA claim she was under a duty to contact the Department to enquire whether the IS section had actually received the information.
 
However, there usually must be some indication that a person is actually making a disclosure on behalf of another and I think that is doubtful here.  She is far better relying on her own disclosure.  She should get a copy of her phone records itemizing the date of the call and the number dialled.  Her oral evidence at a tribunal will then be tested to see if it is coherent and likely.  I’ve won overpayment appeals like this many times.

Thanks for all your input.

Nevip, do you think I am right then to challenge the case based on her duty of disclosure and not official error? 

I am trying to argue that she did disclose to the relevant office, however they failed to act on the information and referred her somewhere else.  She has evidence that at the time she did contact HMRC and the LA to advise them of the change to her son’s circumstances.  However, I can see no telephone call recorded in the DWP’s records to evidence the client contacted them.  But then I am wondering if the operator at the time did not record the conversation as they obviously thought the client had contacted the wrong department. 

I am sort of relying on the evidence that she contacted the other departments and that on the balance of probability she did contact the DWP. Also maybe use the fact that the office was aware of the son making a claim for JSA.

This is a weak case I know, but I am out of ideas as to how I can challenge it in any other way??

Any thoughts?

Once she has made effective disclosure then any resulting overpayment is because of official error.  One automatically follows the other.  Other evidence of contemporaneous disclosures to other organizations is good evidence of the likely truth of her evidence as a whole.  It is not surprising anymore that there is no written record of her phone call to the DWP in its records.  It is important that she tries to get a copy of her own phone records.  This will show the date of her phone call to the Department and the number dialled.  Then you just evidence the fact that the number is that of the relevant office.  That is a starting point.

If you can evidence the phone call to the Department and she is a credible witness and historian then it is not a weak case and I would be far from pessimistic.  Don’t get bogged down in terminology or unnecessarily side tracked by the son’s JSA claim unless it is clear that while claiming JSA he was, at the same time, making a disclosure on her behalf.

nevip - 01 December 2011 04:10 PM

Once she has made effective disclosure then any resulting overpayment is because of official error.  One automatically follows the other.  Other evidence of contemporaneous disclosures to other organizations is good evidence of the likely truth of her evidence as a whole.  It is not surprising anymore that there is no written record of her phone call to the DWP in its records.  It is important that she tries to get a copy of her own phone records.  This will show the date of her phone call to the Department and the number dialled.  Then you just evidence the fact that the number is that of the relevant office.  That is a starting point.

If you can evidence the phone call to the Department and she is a credible witness and historian then it is not a weak case and I would be far from pessimistic.  Don’t get bogged down in terminology or unnecessarily side tracked by the son’s JSA claim unless it is clear that while claiming JSA he was, at the same time, making a disclosure on her behalf.

Thanks Nevip you have been a great help!! :o)

one word of warning.

I had a similar case which was lost as the judge went into detail about what was said by the dwp worker when she phoned.  as the client had said the worker stated they would “look into it”.  the judge was assessing credibility by also asking why the client didnt recontact when her money didnt change (an sdp shouldn have been lost).

it may be worthwhile preparing your client for that type of question as that was a lesson learned for me.  I did try and challenge the decision but didnt get leave to appeal.

stevenm030 - 06 December 2011 10:39 AM

one word of warning.

I had a similar case which was lost as the judge went into detail about what was said by the dwp worker when she phoned.  as the client had said the worker stated they would “look into it”.  the judge was assessing credibility by also asking why the client didnt recontact when her money didnt change (an sdp shouldn have been lost).

it may be worthwhile preparing your client for that type of question as that was a lesson learned for me.  I did try and challenge the decision but didnt get leave to appeal.

Thanks Steve i will bare that in mind.