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Application to Upper Tier ESA Overpayment

barneygriffin
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Birmingham Mental Health Leisure Forum

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I am considering making a second tier appeal on behalf of my client who had an ESA overpayment (18K+) declared as recoverable at a first tier.  The argument hinges on two things:
First that the my client was assumed to have received uplifting letters for his ESA each year that contained a form ESA40 that specifically stated that his pension income uplift would constitute a CoC. The Judge said “I find it more likely than not” that the ESA40 was sent on the presumption of regularity.  DWP did not provide specific evidence of sending but my client kept most of his papers and wrote on the envelopes of what he needed to do as an aide memoire. I provided ample evidence of this in the bundle and argued that my client would need to rely more and more on these memory aids as his health became worse throughout the period of overpayment. The Judge accepted that my client was ‘meticulous’ but because my client also admitted to being depressed and not well for much of the time he would not have remembered receiving the form ESA40 on each uplift.  (The DWP could not evidence a uplift letter in 2016 but the Judge said this was nothing turns on this? .
Secondly the Judge said that it was reasonable for my client to have regarded an uplift in his pension income is something that a recipient of benefit, even a contributory benefit, would reasonably expect to affect his entitlement… My client gave evince that before becoming a teacher he had been employed by the then DHSS as a clerical officer collecting NI contributions.  His understanding of what a contributory benefit was stemmed from this date and so he thought that an uplift in pension or other income would not affect his contributory benefit.  I also gave evidence that as a welfare rights worker who left dealing with ESA at work Capability tests about the year 2002, (I defat with DLA, Work Capability and PIPs mostly), I too shared my clients convictions about what a contributory benefit meant until I came to right his MR. 
Do I have any decent arguments to try the Upper Tier?  Does anybody know any case law that may be of assistance?

past caring
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Essentially, there are two alternative bases for recovery;

1. If the SoS can establish that instructions were given that a claimant must disclose a specific matter and the claimant did not.

2. If the claimant could reasonably have realised that a specific change of circumstances might affect entitlement and did not disclose it.

The FtT has found against your client on both bases, but having found against your client on the first, did not need to go on to consider the second.

I’ll deal only with the first.

In certain circumstances, I think an argument can be made that the SoS has not established that specific instructions were issued - either where the instructions themselves are not provided or are not sufficiently clear or where the overpayment period covers only a couple of years on the basis that the SoS has not been able to establish - on the balance of probabilities - that the instructions were actually issued.

That second argument requires that the SoS is not able to provide documentary evidence that the specific leaflet (in this case the ESA40) was in fact issued to the claimant.. The SoS is not able to do this - its argument always runs that the leaflets are always included in the annual uprating notices, so no specific documentary evidence is kept.

I always counter this with two points - I have a number of clients who, either because of literacy problems or a phobia of official correspondence, do not open their mail. So I have had occasion to open their uprating letters - and sometimes the INF4/ESA40 or whatever is missing. Not on the majority of occasions - but perhaps 5% - 10% of the time. The other thing I always bring up is that before getting into this game I worked in a printworks that printed and processed this type of mail shot. There is effectively a long conveyor belt machine that sticks the pre-folded letters and leaflets into the envelope, with separate hoppers containing bundles each of envelopes, letters and leaflets. If any one of the letters or leaflets is out of alignment, this can result in a letter getting chewed up (in which case the intended recipient never gets a letter) or no leaflet getting inserted into a letter. No-one goes back and checks that each individual letter is sent or that each contains a leaflet.

But that argument is difficult where the overpayment period stretches over a significant number of years. Now, given that we are dealing with an £18k overpayment, that from what you say it seems clear that the DWP was aware of the occupational pension at the outset of the claim and that there is not a £ for £ reduction in IR-ESA where an occupational pension is in payment, I am guessing that we are dealing with a significant number of years? Quite possibly 10 plus?

If I am right, I think it is something of a stretch (putting it mildly) to argue either that the claimant received no uprating letters over that period or that none of the letters contained an ESA40….....

barneygriffin
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Thanks for your reply.  Decision to award made in December 2013 and backdated to September.  First uplift Janary 2014 and claim ended in 2017.  Overpayment from January 2014 until DWP decision in October 2017.  Original decision was a clerical error and no award should have been made until claimant put in the support group in August 2014.  Judge said the clerical error was not germane to recovery but he also ruled that the failure of DWP to record uplift letter in 2016 as relevant either…thus he did not acknowledge any lack of diligence on the part of DWP, (relying on B case).  So there were three uplift letters recorded.  Also my client diligently recorded his receipt of letters and forms from DWP, (plenty of evidence of this in Bundle), including recording if he needed to get benefit advice to clarify an issue.
Issue of the fact that it was a cash uplift in both benefit and pension that should have convinced a reasonable claimant.  I, and the claimant, originally believed that an uplift in income was not relevant to a contributions based benefit because of our respective experiences.  Given our experiences would this not make such a belief reasonable?

Brian JB
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I think you have to be mindful that are you must identify a material error of law in the First Tier Tribunal’s decision. It sounds a little as though you are seeking to simply re-argue the case, which the Upper Tribunal will not entertain.

Elliot Kent
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If you are looking at this from the point of view of a prospective Upper Tribunal appeal, then you need to boil this down to some legal propositions on which the appeal could be based.

The first issue is ultimately a factual question. Your client says that he did not receive the instructions in the 2014, 2015, 2016 or 2017 ESA40s. The Tribunal’s approach has been to ask whether it is “more likely than not” that the ESA40s were sent.

On the face of it, the Tribunal has taken the right approach in that it has resolved the factual question on the balance of probabilities. Whether we call it a ‘presumption of regularity’ or just straightforward application of common sense, the fact that something normally happens in a particular way thousands of times a day is evidence that it probably happened in that way in a particular case. Provided that the Tribunal has appreciated that this is not the end of the matter and has gone on to deal with the other evidence in the case, then it seems to be dealing with the point correctly. See e.g. DW v SSWP (ESA) [2016] UKUT 179 (AAC) on these issues.

So it doesn’t seem you can say that the Tribunal has misdirected itself on what it should be doing. It was not bound to accept what you were saying anymore than it was bound to accept what the DWP said - it needed to reach a decision on the probabilities taking all the relevant evidence into account.

(And, with reference to the 2016 ESA40, it seems to me that the jig is up once the claimant receives the first leaflet in 2014 so I think the Tribunal is right to say the 2016 leaflet is irrelevant)

But there could still be problems with the reasoning. It may be that the Tribunal did not adequately reason its conclusions, or that it ignored relevant evidence or (in the most extreme case) reached a decision which was perverse in the sense that no rational decision maker could have reached it. All that stuff from the Iran case. It’s basically impossible for us to say if there is anything in this without the papers.

In respect of the second issue, I think there is perhaps more scope for a legal point to be made about whether it is reasonable to expect a person who is in receipt of a purely contributory benefit to apprehend that his income might be relevant to entitlement. But this takes you nowhere of itself unless the primary reasoning can be faulted.

Might be worth sending the papers to CPAG UT assistance project to have a look : https://cpag.org.uk/welfare-rights/upper-tribunal-assistance-project

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barneygriffin - 25 September 2019 06:21 PM

Thanks for your reply.  Decision to award made in December 2013 and backdated to September.  First uplift Janary 2014 and claim ended in 2017.  Overpayment from January 2014 until DWP decision in October 2017.  Original decision was a clerical error and no award should have been made until claimant put in the support group in August 2014.  Judge said the clerical error was not germane to recovery but he also ruled that the failure of DWP to record uplift letter in 2016 as relevant either…thus he did not acknowledge any lack of diligence on the part of DWP, (relying on B case).  So there were three uplift letters recorded.  Also my client diligently recorded his receipt of letters and forms from DWP, (plenty of evidence of this in Bundle), including recording if he needed to get benefit advice to clarify an issue.

So there were four uprating letters in the course of the overpayment. Did your client acknowledge receiving these? Or did he deny receipt of all of them? Because if he acknowledged receipt of the uprating letters but argued that none of the four contained the ESA40, then yes, I’d have to say that is improbable. Absent anything else, I think the tribunal was entitled to find, on the balance of probabilities, that your client did receive an ESA40.

Issue of the fact that it was a cash uplift in both benefit and pension that should have convinced a reasonable claimant.  I, and the claimant, originally believed that an uplift in income was not relevant to a contributions based benefit because of our respective experiences.  Given our experiences would this not make such a belief reasonable?

This is effectively irrelevant (or more accurately not material as an error of law - if it is an error) if the tribunal’s decision on the first ground for recoverability is sustainable. If it is established that the claimant was put on notice as to disclosure and then didn’t disclose, that is an end of it. Questions of whether disclosure by the claimant was reasonably to be expected only come into play where the SoS cannot establish the first ground for recovery. Having found against your client on this issue, the tribunal had no need to deal with the second, separate ground for recovery. There is no point going into this (no matter how deficient the decision on this point may or may not be) unless you can show a material error of law in the tribunal’s decision on the first ground for recovery.

barneygriffin
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Thank you all very much this clarifies my thinking enormously.  I will send to CPAG UT section but proceed to ask for Secretary of State Waiver on Hardship grounds.