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Forum Home  →  Discussion  →  Benefits for older people  →  Thread

Trawl of pensioners on PC with SDP - overpayments of sdp being recovered

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Jo Barker
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Welfare rights - Lancashire County Council

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Good morning

We have suddenly started to get calls from older people who have had a visit from the DWP regarding substantial overpayments of Pension Credit. One of our team has spoken with someone involved, it seems Pension Credit have done a trawl/scan of cases where the sdp is in payment to check if they are still getting DLA care/PIP DL/AA and have picked up many who aren’t, and this is leading to decisions that they have been overpaid by significant amounts and that it’s recoverable.

It’s the reverse of the customers we keep coming across who aren’t getting the sdp – there’s definitely either a glitch in their systems or staff have stopped acting on notifications, it’s possible someone in the DWP has issued guidance to advise staff to not act on the notifications and await notification from the claimant. It’s probably a way of them easing the workload with cuts to staff but it’s always the customer who pays the price.

A colleague in Manchester has sent me the attached FOI – page 4 helps with PC overpayments but this may help with any overpayment where we believe they should have had notifications.

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AlexJ
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Trafford Welfare Rights

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I am that colleague in Manchester to whom the original post refers, and I should add that the FOI request was undertaken and shared by Billy Durrant at the Brunswick Centre on this very forum. It’s proven invaluable in a couple of cases so thanks to Billy! 

Alex

Paul_Treloar_AgeUK
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One of our advisers from North Tyneside has been in touch about same thing.

We have been contacted by 2 customers over 2 days notifying us that there has been an overpayment of GPC. 

Initially, both customers were telling us that they have received a letter about their Attendance Allowance entitlement.  Ultimately due to the customer not informing them of a change in circs. or a change in the condition that they were claiming for (3 years ago) there has been an over payment of benefit.  The DWP are demanding £10500 from one customer and over £11,000 from another with a follow up call to push a lump sum repayment.

The CASA
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I am not sure this helps but here goes. There was a Commissioner’s Decision, which resulted in a change in the Claims and Payment regs which says, not verbatim. A backdated award of ICA will not generate an SDP overpayment.  Senior moments but I seem to recall regulation 13Z was inserted by a SI.

A WRO I knew used to advise carers who qualified to claim and ask for the maximum backdating., which was 12 months at the time. It usually took 6 to 8 weeks to process.
At the same time as the ICA claim she got the carer to sign an undated letter to the ICA unit saying I no longer care for Fred Bloggs. As soon as the ICA and backdating was awarded she sent the letter by recorded delivery to the Unit.  Unfortunately, the WRO passed about 10:years ago. She is still sadly missed.

slaw
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We have a client who received a PC overpayment notice for over £13,000.  The letter stated that our client’s AA award ended on 07/04/14 and she was overpaid until 12/08/18.  We were suspicious that something was wrong as the overpayment began from the very start of a financial year. 

We phoned AA and were told that our client’s AA award actually ended on 05/09/17 and so the overpayment amount is incorrect (in a big way), and this casts doubt on the reliability of the information the Pension Service are sourcing.

We will be submitting an MR request regarding the incorrect dates, but obviously the bigger issue is whether we can argue that the overpayment is not recoverable.  The FOI request attached to this thread is enlightening and shows that the DWP has systems in place to inform other benefit sections of changes to disability benefit awards.  However, could the DWP still argue that our client failed to disclose?  Does the failure of the system detailed in the FOI request constitute official error?

AlexJ
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I would argue it with a focus on the causality of the overpayment. Was the claimant’s failure to disclose the cause of the overpayment? Or was it caused by something else? Even if the DWP can show that there was a duty on the claimant to disclose the change and the (which arguably there was), they still have to show a causal link between the failure to disclose and the overpayment.

I would argue that the cause of the overpayment was the DWP’s failure to act on information already in it’s possession. As we can see from the FOI request, the pension Service would have had a work available report (WAR) generated when the AA stopped (telling someone at the DWP to remove the SDP), and they failed to act on this. If the claimant had called up to report the change, what would have happened? I suspect it would have generated a WAR or something similar - ie. it would not have changed the situation. The failure to act by the DWP was arguably the cause.

I think it would be different if the DWP could show, for example, that their IT was broken and failed to generate a WAR when it should have done. In that case, you could then create a causal link between the failure to disclose by the claimant and the overpayment.

At least that’s how I would approach it.

claytonj
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Has anyone got any updates on this situation?  I am wondering has anyone had any mandatory reconsideration decisions come through yet, and if the decision was revised in the client’s favour?

Paul_Treloar_AgeUK
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Sorry, meant to say, we meant Pension Service people last week and they confirmed that in every case whereby AA ceases to be paid (or starts of course), there is an automated electronic notice generated to alert them if someone is being paid Pension Credit so that they can make necessary adjustments to entitlement.

BC Welfare Rights
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Just to add that the original FOI request has been updated and more info obtained - https://www.whatdotheyknow.com/request/notification_of_benefits_endings#incoming-1176421

claytonj
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Thanks for all your posts and advice.  I am pleased to say I have had a successful MR on the basis of the FOI document and third party notification. Huge overpayment of double SDP written off as office error, and two very relieved elderly pensioners!

Paul_Treloar_AgeUK
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claytonj - 18 October 2018 10:15 AM

Thanks for all your posts and advice.  I am pleased to say I have had a successful MR on the basis of the FOI document and third party notification. Huge overpayment of double SDP written off as office error, and two very relieved elderly pensioners!

Good work, thanks for letting us know.

slaw
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We have now received the mandatory reconsideration decision regarding our client’s alleged PC overpayment (see above post).  They are refusing to back down and are insisting that the claimant has a ‘specific’ duty to report the end of the AA award as they are inoformed of this duty in the INF4(PC) booklet sent to client with PC letters.  We have obtained a INF4(PC) booklet and it does advise that claimants should inform PC when any benefits or ‘allowances’ stop being paid. 

We are obviously going to appeal, but -

Although I have read above that decisions have been revised on account of the information in the FOI, I am still sceptical.  A colleague has sent me a recent Statement of Reasons in relation to one of his appeals regarding an ESA overpayment.  In this the judge refers to a House of Lords decision - Hinchy v SSWP [2005] UKHL 16 - that states that one section of the DWP should not be treated as having knowledge of a change of circs because another section is aware of it, and it is the duty of the claimant to inform the relevant section (see also - https://www.disabilityrightsuk.org/hinchy-v-secretary-state-work-and-pensions-2005).

What are people’s views on this House of Lords decision and the affect on the arguments we can use relating to WARs?

Gareth Morgan
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slaw - 19 October 2018 04:41 PM

What are people’s views on this House of Lords decision and the affect on the arguments we can use relating to WARs?

I won an appeal several years after Hinchy when someone failed to inform Pension Service of moving into care but had informed AA.  I pointed out the Departmental Central Index (DCI) was used by all sections of DWP and contained updated addresses from all sections - therefore all sections had been informed.  I, and the judge, was expecting a UT appeal from the department but they didn’t so no precedent sadly.

Paul_Treloar_AgeUK
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I agree with Gareth. In the decision of Hinchy, the judgment states (my emphasis):

32.  I quite agree. The claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the department. In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another. Her duty is to comply with what the Tribunal called the “simple instruction” in the order book. It seems to me, however, that this proposition of Carnwath LJ completely undermines the reasoning of Aldous LJ, based upon what Miss Hinchy was entitled to assume about what would amount to “maladministration”, with which Carnwath LJ said he agreed. For my part, I would approve the principles stated by the Commissioners in R(SB) 15/87 and CG/4494/99. The duty of the claimant is the duty imposed by regulation 32 or implied by section 71 to make disclosure to the person or office identified to the claimant as the decision maker. The latter is not deemed to know anything which he did not actually know.

In these cases, there is no dispute that the “latter” i.e. the decision maker, palpably does know the fact of the AA claim stopping. This is not the claimant assuming that the decison maker knows the material fact, it is the fact that the decision maker knows the material fact and has failed to act on it.

HB Anorak
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I know it will probably need someone to go all the way to the Supreme Court to get clarity on this, but I have said it before and I will say it again: Hinchy is totally out of date, the modern data matching and shared systems make it look like something from the era of quill pens and parchment.  See in particular para 14 of Hinchy.  There simply should not be any need for any claimant to notify any part of DWP about anything that any other part of DWP has done in his/her case and that should arguably extend to local authorities administering HB as well.  As I understand it, Hinchy rejected the legalistic “only one Secretary of State” argument, but the practicality of modern benefits administration means it should no longer be necessary to rely on that kind of argument.

AlexJ
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I’ve just had a successful MR of an ESA SDP overpayment decision, using the FOI request.

I stressed it earlier in this thread, but I’ll say it again; what caused the overpayment? Was it the claimant’s failure to disclose? If they had disclosed, what would have been different? I would argue nothing would have been different. The DWP would have known about the PIP/AA stopping, but they already knew that from their IT. No doubt a phone call from the claimant would have resulted in a WAR being produced, but one had already been produced, so no change there. So if nothing would have been different, had the claimant made the disclosure, how can the claimant’s inaction be the cause of the overpayment?

We can say that the claimant has a duty to make this or that disclosure, and has perhaps failed in that duty, but that does not automatically mean that the failure in that duty was the cause of the overpayment.

The DWP failed to act on information it was clearly aware of: that was the cause of the overpayment. 

At least that’s what I reckon.