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DWP v The Dumanji’s Client - This time it’s official error!!

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Zeyneb Duman
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I am assisting a client in appealing an ESA overpayment due to failure to declare earned income.

Client was unwell and her husband returned to the property to look after her. He started work and claimed working tax credits. In the meantime, client continues to get ESA for a period of time.

Client’s ESA payment changes and she calls the DWP to find out why. They explain that WTC has reduced her award. They did not ask for her to provide evidence of income (payslips).

Client is adamant that she told the job centre when her husband started working though she is not able to recall when and who she told.

There is no circumstance where Working Tax Credit it payable to a claimant where there are no wages.

It has now come to light that HMRC told the DWP about the award of working tax credits and because of this the DWP have concluded that the claimant has failed the obligation placed on her by Reg 32 of the Social Security (Claims and Payments) Regulations 1987 to notify the appropriate office of a change…

Does anyone have any case law where a claimant has reasonably relied on a benefits authority to promptly inform other authorities of a change? At the time, the claimant was incredibly unwell (recovering from cancer treatment).

     
Benny Fitzpatrick
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I can’t see how this could be challenged. Even if it were to be argued that the claimant was too ill to fulfil her obligations, the DWP could counter-argue that her partner could have written a letter or made a phone-call on her behalf. The duty to disclose changes of circs to “the appropriate benefit paying office” within one calendar month of the change is explained on pretty-much every letter the DWP send out.

If the client did, in fact, notify DWP of the change, the call could be evidenced by her telephone record, which could be requested from her network provider.

     
Zeyneb Duman
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The tribunal adjourned, sending a direction to the DWP to find out where they got the WTC information. Though the client is adamant she told JCP, she cannot prove it and because HMRC told ESA about the WTC, it now doesn’t leave me with much to go on.  Thank you for your help - my thoughts were the same but just double checking.

     
BC Welfare Rights
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I’m not sure that she has to “prove” it, as such. If she has told the Tribunal that she informed DWP and she is credible, that may be OK. Further evidence would be helpful but it is not usually crucial. Presumably the DWP can’t prove that she didn’t tell it either. She is asserting she did, the DWP that she did not; it will come down to the Tribunal deciding on the balance of probabilities.

Where it may be problematic is if she can’t remember the date that she did so, how she did so, or who she actually told .It then becomes a bit wooly and a lot less credible - ‘I’m sure I would have told them but I can’t remember actually doing it…’

You say that she informed the Jobcentre. If you mean she walked into her local Jobcentre and told them it is probably no good; she really needed to have informed ESA (the appropriate office). Which she would probably have done by telephone - as Benny says, obtaining phone records may be helpful if so).

Re. how the DWP became aware of the WTC award and when, this is significant. Particularly as DWP has purported to have adjusted her ESA award on receipt of this information. From the date that ESA was aware of this information onwards the overpayment cannot be recovered because it is now official error. It is aware that the husband is working but has not acted upon this information.

Presumably the DWP is trying it on and attempting to recover the award over the whole period?

 

     
past caring
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Zeyneb Duman - 27 July 2018 12:26 PM

I am assisting a client in appealing an ESA overpayment due to failure to declare earned income.

Client was unwell and her husband returned to the property to look after her. He started work and claimed working tax credits. In the meantime, client continues to get ESA for a period of time.

Hold tight. Can we retrace our steps here?

Returned to the property from where? Why - exactly - was he not living at the property in the first place?

     
Zeyneb Duman
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No, he was living else where as they had separated but returned to look after her as she was so unwell.

     
Zeyneb Duman
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Thank you Billy. You have given me the confidence to argue this now!

In my submission, I argued that the alleged overpayment is non recoverable from the appellant as a result of official error from the date that the respondent was made aware of the working tax credit award.  I argued that there are no circumstances that working tax credit is payable where there are no wages and the DWP should have found further facts on her partner’s income.

In a supplementary submission, the DWP say that the “notification from HMRC is a notification that the claimant has income and there are other circumstances in which WTC can be awarded, for example, it could be arrears from an earlier tax year”. I still don’t quite understand how this means they can make an adjustment to her award without requesting further facts about any wages. 

Unfortunately, the appellant does not remember when she told the JCP. She said that she went in to inform them and they told her she didn’t need to do anything else.

     
chacha
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past caring - 30 July 2018 09:36 AM
Zeyneb Duman - 27 July 2018 12:26 PM

I am assisting a client in appealing an ESA overpayment due to failure to declare earned income.

Client was unwell and her husband returned to the property to look after her. He started work and claimed working tax credits. In the meantime, client continues to get ESA for a period of time.

Hold tight. Can we retrace our steps here?

Returned to the property from where? Why - exactly - was he not living at the property in the first place?

Are they a “couple”, in the first place? Seems all parties have agreed that’s the case?

     
Mike Hughes
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Zeyneb Duman - 30 July 2018 12:14 PM

Unfortunately, the appellant does not remember when she told the JCP. She said that she went in to inform them and they told her she didn’t need to do anything else.

Two approaches to this. She may not remember when but she will surely remember which office; what triggered the thought to do so; whether she had to queue; whether the person she saw was male or female; how she got to/from there etc? That information either adds layers of credibility or reveals that she went to the wrong place completely. However, it’s still possible to construct an argument out of the latter scenario as most people would expect that presenting information to the wrong place would trigger the details of where exactly the right place is.

     
past caring
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chacha - 30 July 2018 12:29 PM
past caring - 30 July 2018 09:36 AM
Zeyneb Duman - 27 July 2018 12:26 PM

I am assisting a client in appealing an ESA overpayment due to failure to declare earned income.

Client was unwell and her husband returned to the property to look after her. He started work and claimed working tax credits. In the meantime, client continues to get ESA for a period of time.

Hold tight. Can we retrace our steps here?

Returned to the property from where? Why - exactly - was he not living at the property in the first place?

Are they a “couple”, in the first place? Seems all parties have agreed that’s the case?

Indeed.

Zeyneb Duman - 30 July 2018 10:32 AM

No, he was living else where as they had separated but returned to look after her as she was so unwell.

Warrants further exploration, I would say.

     
ClairemHodgson
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agree re the couple point needing further exploration.  if they had separated and he only came back because of her illness, that doesn’t necessarily mean they’ve started being a couple again.  it just means that he’s now her carer whilst still working….. a different thing.

     
Zeyneb Duman
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They are definitely a couple!

     
past caring
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OK - but as of what date? They had separated. The relationship was over. They were not a couple.

Are you saying that they became a couple again from the day he moved back in to care for her?

     
Zeyneb Duman
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They are a couple and there’s no dispute about that. The issue is whether there is a potential argument of official error in this case.

     
past caring
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OK then - I don’t think there is.

Billy Durrant - 27 July 2018 05:50 PM

Re. how the DWP became aware of the WTC award and when, this is significant. Particularly as DWP has purported to have adjusted her ESA award on receipt of this information. From the date that ESA was aware of this information onwards the overpayment cannot be recovered because it is now official error. It is aware that the husband is working but has not acted upon this information.

Because this is wrong - both factually and legally. Factually, because the DWP being made aware of the husband’s WTC award does not make it aware of his level of earnings. And whilst one can extrapolate the level of earnings from the WTC award, WTC is an annual award, calculated on the basis of the previous tax year’s earnings. For ESA, current earnings are the issue.

The legal reason is more important. For an overpayment not to be recoverable because of official error, then official error has to be the sole cause of the overpayment, as opposed to an additional factor. So whilst it may be the case that the DWP ought to have investigated further and established the husband’s earnings once it became aware of the WTC award, this gets your client no further if she did fail to disclose his earnings.

In fact, the way that I read this from your opening post;

Zeyneb Duman - 27 July 2018 12:26 PM

I am assisting a client in appealing an ESA overpayment due to failure to declare earned income.

Client was unwell and her husband returned to the property to look after her. He started work and claimed working tax credits. In the meantime, client continues to get ESA for a period of time.

is that the husband moved back in, but only some time later began work and claiming WTC. If that is right, did the client disclose the fact that she was no longer a single claimant and was now part of a couple once he moved back in? - i.e. before he began work and started to receive WTC? If my reading of what you’ve said is correct, then disclosure on your client’s part might help establish that, on the balance of probabilities, she also later disclosed the fact that he had started working. But this cuts the other way, of course.

ETA: On the couple thing.

You appear to not want to discuss legitimate issues raised by those wanting to help you. But have it your own way. I accept they are a couple - but your position appears to be that, having separated, they became a couple again from the very moment the husband moved back in to care for your client. This is incredible - and you will be very lucky if any tribunal with its wits about it does not wish to dig deeper into the issue.

Perhaps it is the case that they never actually separated and the husband’s absence was only ever a temporary one? In which case, the client might never have been entitled to ESA as a single person.

 

      [ Edited: 1 Aug 2018 at 09:02 am by past caring ]
Zeyneb Duman
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I accept that the way I have worded it is not the best. So to clarify, I’ll explain a little bit more…

Client and her husband separate in 2007. Client’s husband returns to the property in 2014 and they get back together. Client is going through cancer treatment at the time so he cares for her whilst she is unwell. They make a joint claim for ESA in 2014.

Husband returns to work in Nov 2016. He is only working 16 hours but due to client’s disability is eligible to make a joint claim for working tax credits. In the meantime, ESA continue to pay client between November 2016 - August 2017.

In April 2017, ESA are notified by HMRC that WTC is in payment and her ESA payments are adjusted, taking the WTC into consideration but not husband’s wages.

Thank you for all your help.