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£26.000 overpaid DLA, care home issues
Mt client’s husband went into residential care part funded by his LA 3 years ago, he gets DLA care and mob, my client has bene calling and writing to DWP for 3 years to tell them this but DLA continued to be paid, it transpired that my client was writing to Career’s Allowance as she wrongly thought her husband was getting CA not DLA, any chance of heading of the £26.000 overpayment which will soon arrive as my client is now reporting the situation to DLA ???
First things first here. Your client needs to report the fact of being in the LA-funded care home and get a decision made about their entitlement or otherwise to DLA.
Once that has happened, the DWP might make a recoverable overpayment decision if they feel your client has failed to disclose the material fact of being in the LA-funded care home. At that point, your client could challenge any such decision by arguing that they did attempt to disclose this fact but were contacting the wrong arm of DWP - in turn,, you might be able to argue that the part of DWP that were contacted could have passed on the relevant information to the correct department. Certainly not the strongest argument but arguable all the same.
Separately, you have the question of whether the DLA was taken into account in the LA financial assessment for the care home fees. If it was taken into account, clearly your client runs a risk of being doubly penalised - they are being required to pay back a recoverable overpayment of DLA by DWP but they’ve also not seen any material financial gain as the DLA was used to pay care home fees. In that case, you could try to run an argument with the LA that they should refund an amount equivalent to the overpaid DLA, on the basis that they have failed under their information and advice duties of the Care Act 2014 (section 4). The LA should be more than aware that DLA payments should be suspended after 28 days of LA-funded care so they could have taken action when it became clear that it remained in payment past this time. Again, not easy but maybe worth a shot.
If however the DLA was not taken into account in the financial assessment and a recoverable overpayment decision is made by DWP that your client can’t challenge, they may be stuck with the overpayment as far as I can see.
Thanks Paul, yes the LA have been remis sin not realising the risk of an overpayment, I will suggest my cl take it up with them also
I wouldn’t do anything until your client actually has a recoverable overpayment decision., other than double checking whether the LA are taking the DLA into account. If they are, it might be worth asking them to stop now as your client appears not to be entitled to the care component.
Otherwise, you need DWP to make their decisions and go from there.
This dredged up memories about cases discussing a computer link between the carer’s allowance department and the DLA department and the effect that had on recoverability of an overpayment.
Is discussed in this 2011 decision by Judge Rowland -
https://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=3226
Here’s rightsnet summary -
https://www.rightsnet.org.uk/welfare-rights/caselaw/item/overpayment-whether-computer-link-between-carers-allowance-and-pensions-cen
Claimant relied on old Commissioners case CG/5631/1999 where overpayment found not to be recoverable due to computer link.
Judge Rowland says that he directed DWP to give info about computer links and they acknowledged there was a link between the carer’s allowance computer system and the DLA and AA computer system, although there was a gap in the system where the payment of AA was combined with a pension (as in the case before him).
He also notes that the legal position on recoverability where there is a computer link remains controversial (following Court of Appeal decision in B) and says he would have directed the Upper Tribunal case to be heard by a three-judge panel if there had been a link in the case before him.
I can’t see any more recent cases dealing with it, don’t know if anyone else knows of any?
I think, as Paul says, it would be worth appealing any DLA overpayment decision on the basis of the computer link with carer’s allowance (not much to lose in any event) and see what happens from there.
Had numerous cases like this over the years and as Paul says your starting point is to get an entitlement decision. As part of that process though you might consider the role of the LA and in particular what processes they had in place to notify DWP of people going into care i.e. it often turns out that a declaration was made by the LA to DWP and dots weren’t joined. Ergo whilst the claimant may have (arguably) failed to disclose it may also be the case that the LA had a process in place which it may not have followed.
Further down the line it’s also important to remember that whilst the partner may have been trying to make the declaration, the more immediate question would be whether the partner was the appointee. If not then the onus to disclose falls on the claimant and the set of reasons as to why they did not disclose may be entirely different. You’re then potentially into questions of whether the claimant ought to have or did delegate to their partner the onus for declaration and whether that delegation was passive or active. There is an expectation such actions are active i.e. the claimant queries whether a declaration has been made etc.
It’s very common to have a scenario where the claimant is not fit to make a declaration but an appointeeship is not (yet, perhaps) in place. In this scenario both DWP and tribunals perceive the argument that the onus is on the claimant and they were unable to discharge their responsibility as being an attempt to have ones cake and eat it. Nevertheless it remains a winning argument.
This dredged up memories about cases discussing a computer link between the carer’s allowance department and the DLA department and the effect that had on recoverability of an overpayment.
Is discussed in this 2011 decision by Judge Rowland -
https://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=3226
Here’s rightsnet summary -
https://www.rightsnet.org.uk/welfare-rights/caselaw/item/overpayment-whether-computer-link-between-carers-allowance-and-pensions-cenClaimant relied on old Commissioners case CG/5631/1999 where overpayment found not to be recoverable due to computer link.
Judge Rowland says that he directed DWP to give info about computer links and they acknowledged there was a link between the carer’s allowance computer system and the DLA and AA computer system, although there was a gap in the system where the payment of AA was combined with a pension (as in the case before him).
He also notes that the legal position on recoverability where there is a computer link remains controversial (following Court of Appeal decision in B) and says he would have directed the Upper Tribunal case to be heard by a three-judge panel if there had been a link in the case before him.
I can’t see any more recent cases dealing with it, don’t know if anyone else knows of any?
I think, as Paul says, it would be worth appealing any DLA overpayment decision on the basis of the computer link with carer’s allowance (not much to lose in any event) and see what happens from there.
Thanks Ros, I thought there had been a decision like that but couldn’t remember it. Very useful.
Thanks everyone, my client has POA for her husband who is in the care home, he lacks capacity to act, the LA did say by way of a sentence on the financial assessment from social services that the client should contact DWP and disclose the facts, they gave a tel number to use but for some reason my client did not act on that information but called carers allowance , she did not get carers allowanc its just that she confused dla with CA and assumed it was CA that he husband was getting rather than DLA !!!!!
so it seems 99% of the fault is with my client but she did make some efforts to contact DWP to disclose
Clients often confuse DLA care and Carers Allowance but also PIP DL and CA are frequently used interchangeably.
The question now moves on for me as to what CA did. After all if I rang CA about a change of circumstances but didn’t actually have CA then that would surely come out in the conversation as, in order to go through the motions of recording a disclosure the person answering the call would need a claimant name, DOB, NIN etc. and once in receipt of that info. would instantly see that person as not being a CA recipient. Once they note that there is no CA claim to amend they either end the call there, which would be odd but, with CA, depressingly unsurprising, or, they’d point out that there was no CA and a different discussion takes place.
I’d want a significant amount of detail about those calls.
Thanks Mike, yes I suspect thast what happened, I remember a case called Hinchy which had a bearing on this issue, is it still relevant or has it been superseded ???
This is all Hinchy stuff. You can’t report something to DWP office A and expect it to count as a disclosure to DWP office B because they don’t necessarily speak to one another.
The ongoing applicability of Hinchy is an open question because of a decision of the NI commissioner in SK v DFC [2020] NICom 73 which said it could be distinguished on the basis that technology has improved substantially since the case was decided.
There was supposed to be a three judge panel deciding whether the same logic could be applied in the rest of the UK but it was scuttled by a DWP concession on the facts of the relevant case and therefore we await a further case raising the question to make it to the UT (see para 11 of MW v SSWP (ESA) [2023] UKUT 50 (AAC))
Nice summary of the latter at 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.
The reality for me is that tribunals nowadays are more than open to the fact that Hinchy has zero applicability. In part this is because things have moved on but in part it’s because the push to recruit barristers has left us with tribunal judges gifted the triple whammy of often not knowing their way around the law, guidance and especially the case law.
Nice summary of the latter at 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.
The reality for me is that tribunals nowadays are more than open to the fact that Hinchy has zero applicability. In part this is because things have moved on but in part it’s because the push to recruit barristers has left us with tribunal judges gifted the triple whammy of often not knowing their way around the law, guidance and especially the case law.
Well please can you ask them to stop, as we need an FtT case where Hinchy is applied so that we can get it back to the UT without the DWP making another last minute concession.
Thanks Elliot, yes I remember using HInchy in the past and it was a bit dodgy even then, still we won from what i recall, and I did have a UT success last year on disclosure to ESA about a partner’s pension, the DWP had to accept my clients word that disclosure had been made , if my client called CA 5 or 6 times and told them teh facts maybe that will be enough to get over the hurdles
it looks like a Hinchy defense is the option to go for in my case, all the ducks line up with Hinchy its just whether as you all say a Tribunal can be convinced that there is any merit left in Hinchy
Few tribunal judges nowadays are up to speed with case law so you could literally play it as you wish. I’ve had cases where Hinchy won and cases where I argued it had no relevance or simply didn’t bring it up.