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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

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

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past caring
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OK - that clarifies things both in terms of whether/when they were a couple, but also in terms of the ‘official error’ line of argument.

On one level, there is an argument that when the DWP became aware of the WTC it should have enquired further into the husband’s earnings - but on that point see what I’ve said above about official error needing to be the sole cause of the overpayment for the overpayment to be held to be non-recoverable on those grounds. In other words, it avails the claimant nothing if she was under a clear and unambiguous duty to disclose and did not do so.

Further, the DWP became aware of the WTC only in April 2017, whilst the husband actually started work in November 2016. So it is in November 2016 that the claimant should have notified the DWP of her husband’s earnings and assuming a November 2016 start date, of the WTC award (if WTC started in December, she should have notified in December). If I were presenting the case for the DWP, I would argue that the failure to enquire further into the WTC award in April 2017 was not the cause of the overpayment - that failure would not have resulted in any overpayment had the claimant properly notified the Department of her husband’s earnings and of the WTC award at the appropriate time. It was her failure to do so that caused the overpayment.

None of the above is to say that the claimant did fail to notify, nor to say that you will not be able to persuade the tribunal that, on the balance of probabilities, she did notify. But this is what you are going to have to argue. The official error route is a red herring.

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past caring - 31 July 2018 03:13 PM

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.

I may be wrong about this - it has been known ;-/ - but my understanding is that the ESA computer system will not allow an ESA claim to be paid when there is a notification of WTC, the claim will be automatically suspended. If this is correct, someone in DWP must have manually overridden this in order to change the decision as to how much ESA should be paid. Clearly they have decided to use some level of income for whatever reason best known to them (turns out it was the WTC award only which is plainly wrong). The claimant has not misrepresented anything, she says she has previously informed DWP that her husband is working and they have told her she does not need to do anything else. When the ESA is adjusted she rings to enquire why and is told it is because of the WTC award - it would seem pretty reasonable for her to accept this explanation and not realise that there was something wrong.

It has to be worth arguing that official error is the sole cause of the overpayment from this point on, doesn’t it?

Perfectly happy to be told I’m wrong again, I’m in this to learn, but if it was my case I would still be making that argument here.

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I may not have made myself clear/you may not have understood.

I am not saying that there is no official error/that it cannot possibly be argued as a factor. What I am saying is that on what we know about this case, an appeal is not going to succeed on the basis of an official error argument alone. The husband started work (and presumably claimed WTC at the same time) some 6 months before HMRC notified the DWP of the WTC award. So the client is going to need to be able to convince the tribunal that she notified the DWP of this at the appropriate time. If she disclosed that information, the DWP’s failure to act on the information received from HMRC six months later is neither here nor there - the claimant fulfilled her obligation to disclose at the appropriate time and that’s an end of it. Technically, one could also say that the cause of the overpayment is, from the outset, official error - i.e. the DWP’s failure to act on the client’s disclosure.

But assume for a moment that the client did not disclose at the appropriate time….in that case you cannot sever that failure from being the cause of the overpayment for the entire period, despite the DWP’s having later become aware of the WTC award. The failure to disclose was the cause of an ongoing overpayment. The DWP’s failure to act on the information from HMRC would have made no difference if the client had already disclosed at the appropriate time - the legal presumption is that the DWP would have acted on the client’s earlier disclosure.

I think the position would be different if you were dealing with a case where the facts were different - e.g. if the husband’s starting work, his being awarded WTC and HMRC’s notification of the WTC award to the DWP occurred more or less simultaneously (say all within a week or two). In such a case, I’d argue the following;

- the ESA40 (equivalent of an INF4) requires only that the claimant notify the Department if she or any partner starts work. It does not itself require disclosure of the amount and frequency of the earnings - because it is for the Department to request any further evidence needed once the claimant has made the appropriate disclosure.

- one cannot fail to disclose a fact already known to the Department.

- the Department already knew of the relevant fact (that the husband had started work) due to the notification by HMRC.

There would, I think, still be the issue of showing that the relevant fact was known in the appropriate office (i.e. the one paying the benefit) - but where the client’s ESA award is reduced to take account of the WTC award, there cannot be any doubt that the appropriate office did know.

Mike Hughes
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Mike Hughes - 30 July 2018 02:43 PM
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.

I’m with past caring on this and it brings it back to the above. It is possible to show that disclosure was made on the balance of probabilities.

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Absolutely.

It should be borne in mind that what the client says she was told is consistent with the way that the system is supposed to operate; rather than being asked to produce the evidence of the husband’s earnings at the same time she went in to the JC+ office to make disclosure, a note would (should) have been put on the system to alert the appropriate office that the husband was now in employment so that office could then write to the client to tell her what evidence it required her to produce. The letter that should have been triggered would probably have given the client the option of sending the evidence by post or taking it to be scanned to the JC+ office. But what certainly would not have happened is the client being asked to produce the evidence then and there by the officer to whom she made initial disclosure.

Zeyneb Duman
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Thank you so much for your contributions. This has been a really helpful thread and I have learnt so much.

I met with my Client and clarified what she did or didn’t do. She has now decided that she is going to withdraw the appeal as she admitted that she didn’t notify the DWP about her husband working.

For clarity, client’s husband started working in November and began receiving WTC in April (which was backdated for one month, so payment was from March).

As I am sure everyone is aware, clients can sometimes be very frustrating and are not always very forthcoming with the truth :( 

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Billy Durrant - 27 July 2018 05:50 PM

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?

I have successfully argued in a perhaps similar appeal that these days it is difficult to know which office to report the change to or indeed how..

I have attached a sample submission that might help

 

 

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