overpayment backdated following DWP delay in acting on info from claimant

I have a client who has cerebal palsy and ME. In April he informed the DWP that his ME had improved. No action was taken until a change in circumstances form was sent to him in October. When this was returned his HRM and MRC was removed with an overpayment demand made from April to the date of decision. I thought I remembered there being some caselaw to say that this is an error in law because they didn’t act on the information when it was first given. Does anyone know the case law reference or if there has been any counter caselaw saying otherwise.

You don’t need case law - the law itself is perfectly clear. They are trying retrospectively to supersede the DLA awarding decision on the grounds of a change of circumstances. Retrospective supersessions of DLA awards are covered by Reg.7(2)(c)(ii) Decisions and Appeals Regs. Awards can only be superseded if the claimant failed to notify an appropriate office of a change of circumstances which he was required to notify or which he could reasonably have been expected to know should have been notified. On the facts given claimant did notify and they simply have no power to take the award away before the date of the supersession.

If they have no power to supersede, no question of overpayment should arise. Even if it did there is the usual defence to recovery that claimant did not fail to disclose. But the main issue is that they had no power to supersede retrospectively.

DLA decision makers appear routinely not to understand this. But if you appeal citing the regulations as above they will probably change their minds.

Richard Atkinson