Failure to disclose case law

No access to law books just now (stuck at home with spinal compression fractures) so just needing a bit of help if poss.

Our Deputyship team who act as corporate appointee for this client who went into hospital followed by res care. Attendance Allowance have raised an overpayment on the ground that they did not receive notification of this until some weeks after the appointee had in fact written to notify. AA say letter not received.

Appointee has all the details of the post system, note on file of letter being sent and copy of the letter.

I can’t remember off the top of my head if there is helpful case law on this?

I am not sure there is any, but it would be fair to say that if you have clear evidence that an item of mail was correctly addressed and sent, DWP may have to do more than simply say that it wasn’t received - there is a reasonable presumption that mail correctly addressed will have been delivered. Case law, in any event, doesn’t seem to have caught up with current day post receipt practice in DWP. We all know that disclosure must be to “the office” dealing with a person’s specified benefit, but in truth the item of post is probably never actually received in that office as a hard document. All mail is opened at centralised post opening facilities and is then scanned by the post opening staff on to the relevant benefit system. That, inherently, adds another layer to the process as it involves staff in the mail processing centre correctly identifying where the post is going to. That should, I presume, be a matter for the postcode used, but I think DWP should (in response to your evidence about the item of post being sent) provide a fuller explanation of how their post processing system operates and how they monitor the standards of input/scanning. As an example, I queried recently a MR letter in appeal papers that was clearly incomplete and out of order. When I asked PIP to provide a full copy of the letter, they replied that this was what had been scanned on to their system and the paper copy would have been destroyed after scanning.

As a side issue, which is the correct office? Work in DWP is much more mobile than in my days working there and I had a recent ESA overpayment case where two different offices had made decisions on entitlement on the same day.

This isn’t exactly the same as it’s about telephone disclosure rather than in writing but the basic principle still applies.

CPC/920/2015

Decision

It was for the Secretary of State to establish that the claimant had breached his duty under regulation 32(1A) or (1B) of the Social Security (Claims and Payments) Regulations 1987 to disclose a material fact. In this case, the tribunal accepted the necessary disclosure had been made, but assumed it had not been made to the correct office. It failed to explain, however, on what basis it decided that the claimant had not, on the balance of probabilities, contacted the correct office. This constituted an error of law.

So challenge the decision and ask what basis the DWP have for disputing the fact that they were notified of the relevant change - you have the evidence that it was disclosed.

There is other case law about written communications but my brain is too tired to work out how to search for it at the moment I’m afraid.

Thanks both, that’s all very helpful. I’ve not yet found a revising/superseding decision which was correctly notified either. The main thrust of their response is the same old “you knew you had to disclose because we will have sent you x copies of whatever leaflet it is that says so and we have no record of a letter being received so it’s your fault”.

Plus print outs with various impenetrable codes. I’m getting too old for this. Only 2 years till I get my pension, reduced because I’ve been in contracted out schemes, yay.