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Forum Home  →  Discussion  →  Income support, JSA and tax credits  →  Thread

Overpayment severely disabled child element

JoW
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Financial inclusion manager - Wythenshawe Community Housing

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Total Posts: 343

Joined: 7 September 2012

Claimants child went from DLA high rate care to middle rate but claimant continued to get the severely disabled child element. She thinks she informed HMRC but that aside do you think its worth arguing they have a data feed between DWP and HMRC so should have known as is customary (and if this it was during the period that this feed wasn’t working ((2011 - 2014)) properly that isn’t the tenants fault)??

[ Edited: 12 May 2017 at 03:27 pm by JoW ]
Mark Willis
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Welfare rights worker - CPAG in Scotland

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Hi JoW

It’s always worth arguing, but as you probably know this sounds like a case where the claimant received more than she was entitled to, so there is not much point going down the MR/appeal route of the revised entitlement decision (CPAG handbook chapter 64). Although, if the revised decision goes back beyond the enquiry window to earlier years, it might be worth arguing HMRC has not shown grounds to revise the decision under s20 discovery power - must be attributable to claimant fraud or neglect (handbook p1501) - so this issue could go to a tribunal and try arguing it is not neglect to fail to inform HMRC if reasonable to believe it already had the information…

As there is no right of appeal against the decision to recover, you are left with asking HMRC to use its discretion not to recover the overpayment, using COP26 guidance and dispute form TC846 (CPAG handbook Chapter 62). In this case, HMRC is likely to say that the claimant failed to meet her responsibility to report changes (unless a recording of call emerges), and I don’t think they would be easily persuaded that the data feed negates the claimant’s responsibility. So they are likely to decide the overpayment will be recovered unless there were exceptional circumstances. However, pursuing a complaint may be worthwhile, as it would be interesting to see what the Adjudicator says about this situation - it has previously said that HMRC must take into account circumstances and ability to comply.

Mark

[ Edited: 11 May 2017 at 03:36 pm by Mark Willis ]
JoW
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Financial inclusion manager - Wythenshawe Community Housing

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Total Posts: 343

Joined: 7 September 2012

Thanks Mark. I agree they will say claimant still had a duty to inform them. Claimant is adamant that she either wrote or emailed to tell them of change so lets hope they find something. Have asked for copies of all correspondence and phone records for period in question.