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Reporting benefit changes to multiple DWP departments

Ianb
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Re this case as reported here https://www.rightsnet.org.uk/welfare-rights/caselaw/item/claimant-entitled-to-assume-decision-made-on-benefit-award-would-be-communicated-to-other-relevant-benefit-offices—house-of-lords-judgment-in-hinchy-no-longer-applicable
While it may still be in the interest of a claimant to contact different departments to ensure any revisions to benefit entitlement are made promptly does this case mean that claimants who fail to do so are now protected in all cases from having to pay back any overpayments resulting from DWP failing to process consequential amendments to one benefit as a result of a different benefit change? (Leaving aside UC for which all overpayments are recoverable regardless of cause.)

Elliot Kent
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The case is authority for nothing at all in Bristol. It’s a decision of the Commissioner in Northern Ireland so it may be more useful if you are advising in Belfast.

The DWP will typically rely on the 2005 House of Lords decision in Hinchy as authority for the proposition that a claimant who informs one branch of the DWP is not able to safely assume that other branches are also notified. In this case, the NI Commissioner appears to be distinguishing Hinchy in view of the passage of time and development of computer systems which undermine the assumptions on which Hinchy was based.

Whilst this is an interesting development and may provide an argument which the UK Upper Tribunal may or may not adopt in the future, it would be extremely unwise to advise claimants on the basis that they are now protected from overpayments being imposed in these sorts of cases.

Daphne
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Hi Ian - as a NI case, it is not binding here in GB - although it is persuasive. Just as you were posting that we were adding in a note at the top which reads -

Note: although Northern Ireland cases do not strictly set binding precedent outside the region, this case considers issues that are equally relevant in Great Britain, and therefore the case may be persuasive in appropriate cases.

Mike Hughes
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Whilst not binding here I think we’re seeing a clear trend whereby NI cases are leading the UK and, looking at the facts of the case, I think you’d have to be damned good to argue that this was “just persuasive”. It’s a comprehensive review of a changed landscape and I’d argue the most significant overpayment decision of the decade. Hard to see the UT over here conducting a similar review and coming to a different conclusion. That would be plain bizarre.

Elliot Kent
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The problem ultimately is that its persuasive authority only and it essentially contradicts binding authority of the highest level. It isn’t generally for a tribunal judge or commissioner to decide that a House of Lords decision has had its day. I would be fairly surprised if either DfC or DWP don’t take this further.

Gareth Morgan
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I won a tribunal a few years back arguing exactly this about someone moving into a care home, where benefit had not been stopped.  I pointed out the DCI (departmental central index) at that time was used by all benefits as the record of address and notifying one, automatically notified all.

The judge allowed the appeal, against overpayment recovery, but said that he’d be amazed if the department didn’t take it to the UT.

They didn’t.

Mike Hughes
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Elliot Kent - 28 October 2020 01:00 PM

The problem ultimately is that its persuasive authority only and it essentially contradicts binding authority of the highest level. It isn’t generally for a tribunal judge or commissioner to decide that a House of Lords decision has had its day. I would be fairly surprised if either DfC or DWP don’t take this further.

My guess is that they won’t dare touch it as they would most likely lose and they don’t want to be absolutely bound by that.

Their approach over recent years has been to simply reduce the number of overpayment decisions which can be appealed.

Ianb
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Thanks all - I completely missed the fact it’s a NI case. Perhaps there will be future mainland developments in the future.

Stainsby
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Its not binding but I would still use it to back up my argument

Hinchy was not a unanimous decision and I have successfully used the argument that the Supreme Court would be unlikely to make the same decision today given the advances in technology and that the DWP may no longer be giving clear instructions to claimants as to who to report changes to, and the method by which to do so

There are a number of mainland UK decisions, (admittedly made in different contexts ) which whilst not holding that Hinchy is no longer good law have to an extent been pointing in that way.

Examples I can give are Hooper v SOS (Court of Appeal) (reported as R(IB)2/07),CH/3208/2008 and PPE v SSWP (ESA)  [2020] UKUT 59 (AAC)

shawn mach
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nevip
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I agree with others that Hinchy remains binding on English courts and tribunals and the NI decision does not displace that.  However, one cannot just leave the matter there.  S71 of the Admin Act states that the overpayment must be “in consequence of” the failure to disclose the relevant material fact. 

In other words, the issue of causation must be considered on a case by case basis.  The HoL in Hinchy didn’t get to grips with this.  It didn’t need to, as the CoA had already determined that there was no evidence (for whatever reason) that the DLA section had notified the IS section (by way of its card index) of the cessation of Ms Hinchy’s DLA.  And, as the HoL clearly pointed out, the statutory duty to disclose still rested upon the claimant and found that adequate disclosure to ‘the proper person’ had not in fact been made.  These two things taken together is why Ms Hinchy’s case failed.

It is on the first of these two issues that the NI decision has relevance as the HoL in Hinchy did not even suggest, let alone decide, that the failure to disclose was, in itself, decisive.  I think there have always been legs here and that the NI decision could prove to be extremely helpful to advisers in preparing argument.  But, yes, one will ultimately have to get the entire matter before the Supreme Court to clear it all up.

Sean OFarrell
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I think both C9/20-21(ESA) and the Decision of Chief Commissioner Mullan in C21/17-18(ESA) need to be read together as both are virtually identical in terms of the facts of each respective case. Both Decisions are, in essence, an extremely valuable mechanism for Representatives to be able to distinguish Hinchy, which addressed a disjointed Departmental administration in the period from 1993 to 1998, against the Department’s modern day computerised systems. As Commissioner Stockman says “Claimants are entitled to assume that when they receive their decision in relation to one benefit, the Department’s modern computerised systems will not just have communicated the decision to them, but also to any other branches of the Departmental administration where that decision has an impact.”

Also of great importance is the point that Commissioner Stockman makes in relation to the ESA40 leaflet, when he determined that there was no evidence that an ESA40(NI) had been issued. Therefore The Department cannot rely on any failure to disclose by him under Regulation 32(1) of the Claims and Payments Regulations as he cannot know what matters he is expected to disclose to The Department. I attach a copy of Chief Commissioner Mullan’s Decision in C21/17-18(ESA).

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Welfare BU
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Hopefully this decision from our First Tier Tribunal case where the appeal was allowed will add persuasion to the recent   NI case:

The appeal was allowed in the First Tier Tribunal (18 December 2020, E Cavazzini vs Secretary of State for Work and Pensions). Details: appeal of a decision to recover an overpayment of Pension Credit and a Civil Penalty Fine for alleged failure to disclose a change of circumstance to the relevant office. An appeal was sought when the Secretary of State for Work and Pensions claimed that the Pension Credit claimant had not notified the correct office of a change in circumstance which resulted in an overpayment.  The DWP’s claim was that whilst the claimant may well have notified the State Pension office that he was no longer receiving PIP, he had not notified the relevant office; the Pension Credit office.  Unbeknown to the claimant, he continued to be paid the Severe Disability Premium. The DWP said that he had not specifically told the Pension Credit Office so he had failed in his legal duty to disclose a change of circumstance.  Distinguishing Hinchy, and referring to the NI case C009/20-21(ESA), we argued that since Hinchy, there have been notable advances in technology of the digital systems used within the DWP, as well as the implementation of electronic alerts and triggers which automatically generate when a change in circumstance is disclosed, having consequential effect on the calculation of means tested benefit. The claimant, therefore, had discharged his duty to disclose when he told the State Pension office, by telephone call (the call had been deleted and no longer available), that he was no longer receiving PIP. Furthermore, once the claimant ceased to be entitled to PIP, it was reasonable that the claimant believed that the Pension Credit office knew about the change in circumstance and would remove the SDP from his Pension Credits payments. The claimant could not have reasonably known that he was being overpaid as Pension Credit, for him, was a new benefit and it was not clear how the benefit calculation was made. Hope this helps others in the future.
Pamela Lalbachan (Islington Law Centre)

[ Edited: 6 Jan 2021 at 05:34 pm by Welfare BU ]
Stainsby
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Am I just being pedantic?  I don’t really see the relevance or why the Tribunal says

“The claimant could not have reasonably known that he was being overpaid as Pension Credit, for him, was a new benefit and it was not clear how the benefit calculation was made”

This would only be relevant in a housing benefit case where overpayments are in consequence of an official error and the relevant person could not “reasonably be expected to realise” that they were being overpaid

With Pension Credit, the test is simply whether or not the person failed to disclose the change of circumstances or misrepresented a material fact.

Peter Turville
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Sean OFarrell - 02 November 2020 11:22 AM

...... distinguish Hinchy, which addressed a disjointed Departmental administration in the period from 1993 to 1998, against the Department’s modern day computerised systems.

Is not the reality that the systems then and now are just ‘differently disjointed’. From pretty coloured postcard size notifications via internal post to reliance on a soft wear generated equivalent - both systems which (to varying degrees) rely on a human being actually correctly recording the initial disclosure by the claimant and/or acting on the internal notification?

Ianb
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“Soft wear” - one advantage of working from home!