UC capital challenge
Cl was on ESA which ended when he drew down a pension pot. Cl is alcohol-dependent and has MH problems. He gave some of the capital to his former wife and daughter. Shortly after he was found fit for work for ESA and challenged the decision. He was without means-tested benefits for a year or so before moving to a PR property and being assisted by a support worker to claim UC as his capital was below £16k. He did not declare his outstanding capital to UC. UC became aware of the capital and asked for bank statements which cl failed to provide. His UC was stopped due to a decision that he had capital in excess of £16k. Cl challenged the decision and contacted us. He had no capital by this point. HIs WCA challenge succeeded and he was found to have LCWRA.
Cl provided the bank statements finally, which showed how his capital had declined over the course of the UC claim. UC made a revised decision, notified to the tribunal, that he had entitlement but that the capital was to be taken as generating tariff income to be deducted from cl’s award. They worked this out over the duration of the claim and decided that he had been overpaid by £3445. Their calculations included the LCWRA element awarded on appeal and backdated. They did not make any decision re deprivation of capital nor notional capital. They asked the tribunal to revise the decision and lapse the appeal.
However whilst their calculations of tariff income were correct, their adding up appears not to be- we consider that he has in fact been underpaid. Cl sent a statement to the tribunal accepting the decision in principle but asking for the calculations to be reviewed. There has been no response from the DWP and the appeal has now been listed for August.
The tribunal can look again at the whole decision. Is there a risk that the tribunal could decide to treat cl as having deprived himself of capital and of having notional capital?
So in short the DWP said he had actual capital over the upper limit, they have now conceded that this was not in fact that case although there was capital above the lower limit and they have calculated an overpayment on that basis. Rather than revising the decision and lapsing the appeal they have just made appropriate concessions but your client feels that there are issues with the calculations.
Is it then open to the Judge to go behind all of that agreement and decide the appeal based on a notional capital issue which is not part of the original decision?
The judge is certainly not required to determine that issue as it isn’t an issue ‘raised by the appeal’. Whether or not the judge has a discretion to do so despite the position of both parties is perhaps an open question - it certainly would be very unusual and would require the proceedings to be adjourned as it would be completely impossible to have a fair hearing on the issue in the hearing in August. I wouldn’t really be too concerned about it.
Judges tend to like to resolve issues of principal rather than the nitty gritty of individual calculations. It wouldn’t surprise me if the judge in August just says something to the effect that the appeal is allowed on the agreed capital figures and the issue of calculation is remitted to the DWP which can be subject to a new appeal if contentious.
Music to my ears Elliot. I have gone over the calculations and cannot see how they have arrived at their overpayment figure- I drafted a statement for the client to submit and expected the DWP to respond relatively quickly and for the appeal to be lapsed. I am surprised that it has got as far as listing.
Thank you for your speedy response.
This client had his tribunal in August 21. The tribunal agreed with our calculations and asked the DWP to go away and sort it out, according to the client. Cl however has never received anything in writing from the tribunal. Have finally established today that the DWP has not had anything in writing from the TS either, and that it is why they have not issued any arrears.
What should the tribunal have issued to claimant and DWP? And what is the best course of action to move things forwards?
What should the tribunal have issued to claimant and DWP?
A decision notice.
And what is the best course of action to move things forwards?
Contact the Tribunal and ask why the decision notice hasn’t been issued for a hearing in August. It usually comes out within a day or two.