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

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Neil Windle
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There’s a brand new ruling on this: SSWP v AT [2018] UKUT 392 (AAC). It concerns one of my clients who was alleged not to have reported a change of circumstances (loss of DLA) and as such attracted a considerable overpayment of ESA.

The FtT ruled in his favour, stating that the ESA40 did not clearly present those instances in which a change of circumstances should be reported. A Work Available Report (WAR) was mentioned, and in its request for LTA the SSWP stated that a WAR was not issued either because of human error or the system removing the expiry date because of a change on the system.

The Upper Tribunal judge, however, has ruled that “even if there had been some failure by the Secretary of State, that would not alter the claimant’s liability.” Therefore the overpayment is recoverable.
This seems to wrap it up. WAR or no WAR, the claimant has a duty to report.

     
Paul_Treloar_AgeUK
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Thanks Neil, is there a copy of the decision available?

     
Neil Windle
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The UT decision is now uploaded to Rightsnet.

     

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Paul_Treloar_AgeUK
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Neil Windle - 04 December 2018 04:10 PM

The UT decision is now uploaded to Rightsnet.

Nice one, thanks again.

     
Neil Windle
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I should add that the appellant named in the decision does not object to his name being mentioned here.

     
Stainsby
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The House of Lords held in Hinchy that there was a duty to disclose the change to the office dealing with the claim, but in a post Hinchy decision the Court of Appeal held in Court of Appeal held in Hooper v Secretary of State for Work and Pensions [reported as R(IB)2/07] (Dyson LJ giving judgment) at [56-58]

56 I agree with the reasoning of both of these Commissioners. Read in the context of the factsheet as a whole, I do not consider that the words “you should tell the office … before you start work” and “you should fill in an application form before you do any permitted work” are the language of clear and unambiguous mandatory requirement. The consequences for a claimant of not complying with a requirement in accordance with regulation 32(1) can be very serious. That is why in my view, if the Secretary of State wishes to impose a requirement on claimants within the meaning of regulation 32(1), it is incumbent on him to make it absolutely clear that this is what he is doing. There should be no room for doubt in the mind of a sensible layperson as to whether the SSWP is imposing a mandatory requirement or not.
57. Mr Commissioner Jacobs said that the word “should” in the factsheet was a “polite way of wording an instruction”. There may be contexts where the dictates of politeness are such that “should” means “must”. Even in a social context, “should” may not mean “must”. As Thomas LJ pointed out in argument, “you should go to the doctor” does not mean the same as “you must go to the doctor”. The former is more the language of “you would be well advised to go to the doctor”. The latter is an instruction. But there is no reason why the Secretary of State should have felt inhibited from using the clear and unambiguous word “must” in the present context. The context is not one which demanded politeness at the expense of clarity.
58. For these reasons, which are essentially the same as those given by Mr Commissioner Mesher and Mr Commissioner Howell QC, I would allow the appeal on the third issue

I would argue that thins have moved on since Hinchy and that Hinchy may no longer be good law because with the growth of call centres it is becoming difficult to know which office is actually dealing with a claim, and conversely it is becoming more the case that the IT links between “offices” are now such that the Secretary of State ought to be held to know of a whole raft of changes that the HL held could be assumed he did not know.

There is also the question as to whether it can safely be presumed that the INF4(PC)  was been sent to or received by the claimant, and whether the instructions are clear enough to pass the Hooper test.

I have not seen the PC version of the INF4 for some time so my memory is not reliable on that score, but its content is probably in much the same terms as the ESA40, and had this to say about that document in one of my ESA submissions

“..At the risk of being pedantic, I have to say that the ESA40 does not give any instructions as to how claimants must report changes.  (It does not for instance tell claimants that changes can be reported by telephone or in writing).  The ESA 40 does not in any case use statutory language because there is no statutory duty to report changes “straight away”

I have uploaded the outline argument re the ESA40 that could be adapted for the PC equivalent

I don’t think AT is necessarily fatal to the argument because it seems to me that Judge Jacobs allowed the appeal because the FtT held that because the ESA40 did not specifically refer to changes in DLA as something that must be reported, that had absolved the claimant of any duty to report the change.  Judge Jacobs held that this was an error of law but did not remake the decision, it was remitted to another Tribunal

In CH/3208/2008 then then Deputy Upper Tribunal Judge Poynter held at [29]

29…...The second is the obligation imposed by regulation 88 to notify any change of circumstances which:

‘which the claimant might reasonably be expected to know might affect the claimant’s right to, the amount of or the receipt of housing benefit’.

Neither of those obligations is absolute. The first depends upon the claimant’s having been ‘required’ by the authority to provide the information and the second only arises if the change is one that the claimant might reasonably be expected to know might affect her benefit. And what might reasonably be expected of a claimant will often depend upon the information she has been given has been given by the authority.

Judge Poynter notes at [31] that Regulations 86(1) and 88 are in similar terms to regulation 32(1) and (1B) of the Social Security (Claims and Payments) Regulations 1987. He then cites Hinchy and concludes that” In my judgment, the principles it sets out apply equally to housing benefit and council tax benefit as they do to the social security benefits that are administered directly by the Secretary of State for Work and Pensions,.”

Judge Poynter then holds that for the purposes of regulation 88, Karen cannot reasonably be expected to know that something might affect her claim to benefit unless the Secretary of State has made it clear what sort of changes might do so.

      [ Edited: 5 Dec 2018 at 06:58 pm by Stainsby ]

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slaw
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Stainsby - 05 December 2018 05:33 PM

I don’t think AT is necessarily fatal to the argument because it seems to me that Judge Jacobs allowed the appeal because the FtT held that because the ESA40 did not specifically refer to changes in DLA as something that must be reported, that had absolved the claimant of any duty to report the change.  Judge Jacobs held that this was an error of law but did not remake the decision, it was remitted to another Tribunal

 

My reading of the UT decision is that the judge is quite clear that the claimant has a duty to report the change regardless of any internal DWP reporting systems (paragraph 9 of decision).  The reason he didnt substitute his own decision was because the FtT judge did not look at other issues with the case, such as the claimant’s assertion that he did report the change.  I think this decision could be fatal to the argument.

The decision does state that there are other appeals with the UT regarding the same issue, so maybe there is some hope.

      [ Edited: 6 Dec 2018 at 03:54 pm by slaw ]