PIP overpayment and DOLS

I have a client who was in receipt of PIP and got sectioned last November and is currently in a care home, which looks like a permanent arrangement.
He is classed as having no capacity, and DOLS (deprivation of liberty) has been applied as he is unable to self care

LA picked up the case in January, it was passed to another team who identified in April he hadn’t notified PIP of his new address and was still in receipt of the benefit.

Benefit stopped May , and overpayment generated from dec - may of 1200 quid

Its an obvious failure to disclose however the clients mental state in November was such that he wasn’t capable of disclosing anything to anyone due to being sectioned. At the time he had no appointees or anyone to help him, just sectioned and that was it.

Just fishing : is there anyone who has had this type of overpayment written off at DWPs discretion?

They rarely do but it has been known. Any supportive caselaw i can use?

Thanks

I’d take a look at B v Secretary of State for Work and Pensions [2005] EWCA Civ 929, reported as R(IS) 9/06. It was bad news when it came out but may be helpful for you - specifically, it confirm that a claimant cannot disclose that which he does not know. I have had success at an appeal by producing a letter from a consultant psychiatrist which confirmed that the appellant was so unwell as not to know he was in hospital ...etc.  (My interpretation was that being incapable would not have won the appeal, but not knowing that he was in hospital meant that he could not fail to disclose).

Are there any arguments about from whom it should be recovered?

Sorry - should also have said - my experience of asking for overpayment write-off on mental heallth grounds recently was not good.

HMRC would be more considerate….....
https://www.gov.uk/hmrc-internal-manuals/debt-management-and-banking/dmbm585185

I would think of this as close to routinely not recoverable. At the point at which disclosure was required did the claimant in fact know the material fact and were they capable of disclosure? Those answers will guide you. Very easy to get bogged down around MH and think it’s more complex than it is. Not had one recently but have had many like this over the years and it really ought not to be a problem getting it deemed non-recoverable full stop. It may take a tribunal but they’re the sorts of cases tribunals have determined in your favour before you’ve stepped through the door/turned your camera and mike on.

I think my fave was an alcoholic who, at the time, clearly received notification of various pensions but had no recall of that and was physically incapable of disclosure. They came after them 12 years later. Limited medical evidence to support the lack of recall etc. but the claimant, no longer drinking and in fragile but nevertheless wholly stable health, gave vivid, clearly recalled and credible evidence of how they understood their mental and physical health to have been at the time and we got £30,000 determined as non-recoverable.

Going down the discretionary write off route sometimes looks like an easy win but DWP have a nasty habit of resurrecting those cases at the point of death and deciding that the time has come to exercise their discretion in a different way. Wherever possible it’s far better to go down the “failure to disclose/disclosure could not reasonably have been expected” route.