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overpayment help needed
I have a client who had two seperate overpayments. one for pension credit and one for income support. both were appealed.
recovery for both was placed on hold and we waited on the submission papers to arrive. this went on for over a year and as the deductions had not started (and the client is pressing on in age) there was nothing to be gained from me pressing the issue to have the appeal heard.
Recently the client contacted me as he received notification that repayments were due to start for the pension credit overpayment. I contacted debt management only to be told that the pension credit overpayment had been reduced (very slightly) over a year ago and only the client had been notified. The client is quite a vulnerable man and he only told me when he got the most recent note saying the money was about to be deducted from his benefits.
Unfortunately we are now outwith the absolute time limit to appeal against the revised pension credit decision and it appears from the 1999 regs that the DWP did only have to notify him of the new deciison rather than me as well.
The client has been to see his MP re this but debt management are refusing to budge and consider writing off the overpayment and from what I can see we are now stuck with no chance of having a late appeal as outwith the absolute time limit.
if anyone can suggest a way around that I would be very glad to hear it?
Unfortunately the case gets worse as debt management now say they have lost the income support overpayment appeal. they recognise one has been sent and lodged but are claiming they cant forward the case to the tribunal service without this. the deductions for this are on hold and the course of action I am giving thought to is to just refuse to resent the appeal (which they know they got) on the basis that they shouldnt recover it until the appeal is heard but my worry here would be they just start deductions anyway?
The MP has already been involved in this and this is a first for me so any suggestions would be greatly received.
I would have a look at R(IS) 2/08 and see how that relates to the facts of your case. It may be possible to bring that to the DWP’s attention to show that they were wrong to lapse the appeal. If they do not budge, write directly to the Tribunals Service, setting out details of the case, and see if a Tribunal Judge is able to direct that the appeal be admitted for hearing. It would be open to the Tribunal Judge, I think, to say that the appeal had not lapsed.
were you down as the rep when the appeal was submitted, either on the GL24 or otherwise? If you were, then I believe the Tribunal Service should have notified you direct that the appeal had lapsed. I don’t know if this helps but as the previous post suggests questioning the original decision to lapse seems a sensible way to proceed.
thanks to all for the responses.
soviet i have read that very lengthy decision and have narrowed the most relevant part down to paragraph 31 where its said that if its a small change and the sos knows it doesnt deal with the substantive issue then it may be the case that the original appeal should go ahead.
I am wondering though what i do in a practical sense to try and push that on? direction notice from the tribunal? would this be the same thing required to get the income support claim moving?
grant we were down as reps but when i checked the regs on that iit seemed to suggest they only had to notify the client rather than me as representative. hopefully i am wrong but (please prove me wrong) but it seems only legal appointees etc must be notified.
Unfortunately the case gets worse as debt management now say they have lost the income support overpayment appeal. they recognise one has been sent and lodged but are claiming they cant forward the case to the tribunal service without this. .
This is palpable nonsense. The DWP openly acknowledges it has received an appeal and therefore there isn’t any doubt an appeal has been made. Rule 24(1)(c) of Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 places the “decision maker” (i.e. the DWP in this instance) under a MANDATORY duty to issue a response to the Tribunal “as soon as reasonably practicable”. The fact the appeal has been mislaid / lost doesn’t negate the DWP’s duty.
I would go back to the DWP once more, pointing out it is under a legal duty to issue such a response. If, yet again, the DWP refuses to refer, write directly to the Tribunal (HMCTS - “Her Majesty’s Courts & Tribunals Service) explaining the situation and asking the Tribunal to issue a Direction (under rule 6) requiring the DWP to comply with its duty under rule 24. In support, you could cite R(H) 1/07 (para 34) in which it was found that an appeal could bypass the decision making body where that body failed to administer an appeal appropriately. Although the current Tribunal system has since been introduced, my view is that the principles held in R(H) 1/07 still hold good.
Depending on the chronology, it may also be open to argument that the IS appeal should be taken as an appeal against any other related matter (including PC decisions) on the ground that a claimant cannot be expected to appreciate the technical distinctions that practitioners themselves often find difficult to get their heads around.
{Edited to add}: On the issue of advantageous revisions that don’t provide everything sought under appeal, it may be arguable that the appeal hasn’t lapsed if following R(FC) 1/92 (para 3). I’m not sure whether this argument will still stand given the substantial changes in the legislation since that decision but, it is certainly arguable.
thank you for the replies. on the income support appeal i think i will write to them offering one more chance to deal with the appeal and if not issue a request for a direction notice to the appeals service.
on the second i have already tried the route (via the mp) of trying to have it written off on the grounds of vulnerability but this has so far been refused. basically the only thing they have admitted liabiltiy in so far is the nonsense about resubmitting the appeal.
sorry if this point has been essentially answered but if i can argue that the decision to review didnt deal witht he whole appeal and as such the appeal should have went ahead as usual. could a direction notice be used in that case as well? i.e. could a judge direct that the “reviewed” appeal go ahead as the new decision didnt deal with the actual disagreement?
sorry if this point has been essentially answered but if i can argue that the decision to review didnt deal witht he whole appeal and as such the appeal should have went ahead as usual. could a direction notice be used in that case as well? i.e. could a judge direct that the “reviewed” appeal go ahead as the new decision didnt deal with the actual disagreement?
Can’t see any harm in asking. Ultimately, it’s upto HMCTS to decide if an appeal can be admitted, not the DWP. Simply argue that the purported revision did not provide all that was asked for in the appeal and, therefore, the appeal does not lapse - cite the case law in question in support, arguing the principle is still valid whilst acknowledging the subsequent changes in legislation.
just an update and to say thanks for the help.
judge has now decided, after the direction notice request, that the appeal decisions are void and non recoverable. the decision also goes on to say that any attempt at recovery would be unlawfull and should this happen that we should applyt to the upper tribunal for contempt.
it would appear the DWP have been unable to properly show they followed the correct review, recovery procedure on both cases.
That is the second piece of news that has left me smiling broadly this morning. That doesn’t happen too often nowadays.
It is especially warming to hear, at long long last, of a suggestion by a Judge (albeit FtT) that a decision making authority could be subject to contempt proceedings when ignoring FtT decisions. This type of approach is long overdue given the propensity of the DWP (and all too many LAs) to exceed and even abuse the legal limitations of authority.
In the event of an unlawful recovery attempt, the Supreme Court ruling in The CPAG (Resp) v SoS DWP (Appell) [2010] UKSC 54 is the obvious case law to cite in support of any subsequent legal proceedings - including any issues of contempt.
thats what shocked me as well. good to see though.
If it wasnt for the impact on the client i would be almost willing them to do it.
http://www.bailii.org/uk/cases/UKSC/2010/54.html
link to CPAG decision