I would like some advice regarding the best way to deal with an SP overpayment:
Claimant was receiving an adult dependant addition for about 9 years.
3 years ago, wife claimed CA. On the claim form it was stated that husband received SP (although did not say dependants amount)
A letter was received from CA awarding benefit with a reduction to the backdated amount due to the adults dependant amount.
However, the dependant addition continued to be paid as well as CA. Claimant advised DWP of this on a couple of phone calls, as he was told that he may not be entitled to this ongoing, but the change to SP was never made. He therefore assumed it was ok to keep receiving.
Does this count as official error as the DWP did not act on the information given on the CA claim form and also the telephone calls? If it is official error does this mean the DWP must not recover?
If the DWP can recover, we will not be able to ask for them to use their discretion not to recover as there is considerable capital which will mean there is no hardship if the £9,000 overpayment is expected to be paid back.
I have some thoughts on this one Liz but not back in office until Wednesday.
If there’s any time pressure, stick in MR and challenge on grounds that your client can’t have failed to disclose something which he’s already told them.
Seen your message Liz so I know you have sent MR.
Without teaching you to suck eggs, it’s for the DWP to establish the basis on which they say your client has been overpaid - from what you’re saying, it could be they’re arguing about misrepresentation on the original claim form although I think that’s a bit of a stretch so I’m assuming it’s a failure to disclose a material fact.
If so, and provided they have made an entitlement decision and an overpayment decision to that effect, then I would agree with you that your client did disclose the fact of the ADI being in payment, apparently on more than one occasion, and thus can’t be held to have failed to disclose. There is the argument about how many times does someone have to disclose something and the on-goijg duty to disclose when, for example, uprating letters are received, but with somethng so niche, I think it’s strongly arguable that he did as much as could be expected in the circumstances.
Ironically, this has probably come to light now as they’re abolishing the ADI’s from next year.
Key phrase here is “may not be entitled”. If the claimant had been told categorically that they would not be entitled then the argument for there being an ongoing duty to disclose would be a little stronger as there’s only one conclusion a reasonable person could come to when told “would not” and a subsequent disclosure appears to change nothing.
If they were told no more than “may not” it might be argued that they ought to have made further enquiries as to what that meant. The counter to that is that two calls were made to the so-called experts at the DWP and any failure to mention the exact consequence on that must reasonably fall on them as the party trying to change the award and recover.
Absolutely non-recoverable from my perspective.