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Pension Service and change of circumstances

 

Martin
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I am helping a client regarding overpayment with the Pension Service.
They were in receipt of Attendance Allowance and because they lived alone and no one claim carers allowance they were also in receipt of the Severe Disability Premium which was paid through their Pension credit.
The Attendance allowance was only paid for 1 year and it then stopped, but the Pension Service still kept paying the SDP for a further 5 years. The Pension Service has now asked for this money to be paid back, we appealed on behalf of the client but the Pension Service have rejected the appeal, they say it is up to the client to inform them of any changing.
Does anyone think that we have a case for taking it further?
My argument is did this client understand what the SDP payment involved.

      [ Edited: 9 Jan 2019 at 10:02 am by Martin ]
Paul_Treloar_AgeUK
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Have a read of this thread Martin Trawl of pensioners on PC with SDP - overpayments of sdp being recovered

We’ve heard mixed reports, some people challenging have had o/p written off, for others the Pension Service are digging their heels in and refusing to change decision.

     
Peter Turville
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Unfortunately the case law is not particularly helpful - a recent case concerns ESA but the principle applies to all benefits (subject to the precise wording of the instruction leaflets issued to claimants for the relevant benefit etc). Generally a claimant cannot rely on any internal DWP notification processes that may exist. It remains their responsibility to report a change /end in the award of another benefit.

https://www.rightsnet.org.uk/welfare-rights/caselaw/item/esa40-leaflet-imposes-a-duty-on-claimants-to-report-when-their-dla-stops-de

in a case like yours the claimant was required to report the end of AA to PC. It was then for PC to decide whether s/he remained eligible for the SDP. If the client can demonstrate ‘on the balance of probabilities’ that she did report the end of AA to PC but they failed to act on that disclosure (not uncommon) then there may well be merit in a challenge to the decision because there was no ‘failure to disclose’. If your client did not disclose the end of AA to PC it may be very difficult to argue and a request to DWP to exercise discretion not to recover (or a DRO for example) may be the only option.

      [ Edited: 9 Jan 2019 at 04:05 pm by Peter Turville ]
Paul_Treloar_AgeUK
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Peter Turville - 09 January 2019 03:58 PM

Unfortunately the case law is not particularly helpful - a recent case concerns ESA but the principle applies to all benefits (subject to the precise wording of the instruction leaflets issued to claimants for the relevant benefit etc). Generally a claimant cannot rely on any internal DWP notification processes that may exist. It remains their responsibility to report a change /end in the award of another benefit.

https://www.rightsnet.org.uk/welfare-rights/caselaw/item/esa40-leaflet-imposes-a-duty-on-claimants-to-report-when-their-dla-stops-de

This is true to an extent Peter, but I do think there remains an argument that where the WAR can be shown to have been sent, then the position is not so clear. That’s why it’s worthwhile continuing to challenge such cases as it’s often not until appeal that the relevant information can be obtained.

     
Peter Turville
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Paul_Treloar_AgeUK - 09 January 2019 04:01 PM
Peter Turville - 09 January 2019 03:58 PM

Unfortunately the case law is not particularly helpful - a recent case concerns ESA but the principle applies to all benefits (subject to the precise wording of the instruction leaflets issued to claimants for the relevant benefit etc). Generally a claimant cannot rely on any internal DWP notification processes that may exist. It remains their responsibility to report a change /end in the award of another benefit.

https://www.rightsnet.org.uk/welfare-rights/caselaw/item/esa40-leaflet-imposes-a-duty-on-claimants-to-report-when-their-dla-stops-de

This is true to an extent Peter, but I do think there remains an argument that where the WAR can be shown to have been sent, then the position is not so clear. That’s why it’s worthwhile continuing to challenge such cases as it’s often not until appeal that the relevant information can be obtained.

Unfortunately, in the ESA case the SSWP conceded that a WAR had not been issued. But the issue then becomes one of causation. So if one cause is the internal failure of DWP procedures but another is the claimants failure to disclose when there was a clear duty on them to disclose it may be very difficult in practice to argue that their failure to disclose was not a cause of the overpayment (unless, for example, the claimant can argue that they did disclose to PC).

The approach to such cases is I would suggest:

was the claimant under a duty disclose?
did the claimant disclose?
did any internal procedures fail?
did the benefit office fail to act on either / both of those disclosures?
what was the cause of the overpayment one of both of those failures?

If one of the causes was the claimants failure then the DWP/tribunal are entitled to find that the overpayment occured due to the failure of the claimant (even if there was also a failure of DWP procedures) and therefore the overpayment is recoverable. It is sufficient for one of the causes to be the failure of the claimant.

Of course a particular tribunal dealing with a particular case may still find the failure by the claimant to disclose was not a sufficient enough causation to decided that the overpayment is recoverable (although I’m no convinced that is technically the correct approach to causation (its not a question of which was the more likely / greater cause).

A failure of internal procedures may be an additional argument to request recovery action is not taken

     
Paul_Treloar_AgeUK
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Peter Turville - 09 January 2019 04:31 PM

Unfortunately, in the ESA case the SSWP conceded that a WAR had not been issued.

That’s my point though Peter, in the UT case it was never issued so the client couldn’t rely on it, but it many cases it will have been issued and not acted upon.

We’ve had one case where the client in question had next to no capacity and didn’t know what benefits she was or wasnt getting but had no-one acting for her, no-one seems to know why her AA stopped either and she should probably have been getting it all along. She was threatened with a penalty as well as the o/p.

I’ve seen a couple of other cases where clients were in an AIP and therefore explicitly told they didn’t need to report changes in their retirement provision - are they really expected to be able to understand this doesn’t include AA, especially when the DWP DM does know the material fact of the AA claim having stopped but failed to act upon it?

This really feels like an exercise in making elderly people pay for the maladministration of the Pension Servce in the past and is causing a huge amount of distress for many people, who are often on very low incomes anyway. We’ve also had decisions overturned on appeal because evidence requested hasn’t been supplied by DWP, appeal submissions have been shoddy and there simply seems to be an exercise across DWP to intimidate and scare people over mistkaes that are largely those of the DWP/Pension Service.

     
Peter Turville
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I don’t think we are in disagreement rather a question of emphasis. This situation occurs across all relevant DWP benefits. There is a similar issue, for example, for overpayments of carer’s premium due to the end of an underlying entitlement to CA.

Yes a claimant can use the argument that a WAR was issued and PC (or ESA etc) failed to act on it and that is a cause of the overpayment. But that failure is rarely the only arguable cause of an overpayment. The DWP is likely to argue that another cause of the overpayment was the failure to disclose by the claimant despite the duty set out in the standard leaflets etc.

The legislation / case law does not require consideration and a finding of the primary cause of an overpayment to found recovery. Failure by the DWP or by the claimant simply has to be a cause. There are no special provisions when determining causation where the claimant happens to be of pension age for example. The provisions are the same for all claimant groups. All claimant groups are having to pay for maladministration by DWP.

Now it may well be that a tribunal in any particular case will when determining what were the cause(s) of an overpayment take into account the specific facts of the case including the claimants age, disability etc. when weighing the evidence and may decide that the maladministration by DWP, the wording of the instruction notices issued to the claimant for the benefits at issue, failure by DWP to provide relevant evidence etc. is sufficient in the case to determine that a failure by the claimant to disclose was not a cause of the overpayment.

But I would suggest advisers will always need to be prepared for the argument that however poor DWP’s administration, unclear instructions to claimants are etc. if the claimant failed in their duty to report then a cause of the overpayment is the claimant’s failure and therefore the overpayment is recoverable.

In practice we win some & we lose some.