urgent incap opyt advice

Hmmm…

Tricky.  Much could depend on the wording of the claim form, the wording of the info given by the claimant and the wording of any subsequent notification(s) - including the infamous INF4.

A couple of HB/CTB cases show how different views could be taken by the Tribunal.  In CH/0881/2005, the late Cmmr Fellner found it was an error on the part of the LA not to make enquiries about info given by the clmt on a claim form.  However, in CH/4043/2005, the then Cmmr Jupp decided it was not an error for the LA to determine a claim where a claim for JSA was known by the LA to be pending - the clmt failed to notify the subsequent award of JSA.  The latter sounds fairly similar to the case in question.

In short, there may be a case to argue for the claimant but I wouldn’t be surprised if the FtT decide the clmt was still obligated to notify the DWP once the pensions were actually awarded.

Thanks for the advice, client denies receiving INF4s, remains to be seen if Tribunal think this is credible.

I am keeping my fingers crossed Tribunal will accept DWP had a duty to follow up on info known to them, but as you’ve suggested I think they are more likely to find client had an obligation to disclose.

I can confirm from first hand experience that INF4s are NOT always included with notifications.

Did the client give the details of the occupational pension provider?

I have seen old forms say the following:

“When we get Your reply back, we will make sure you are getting the right amount of incapacity benefit…”

“…As we cannot make any payment of Incapacity Benefit until we have the information requested.”

In these circumstances if the client has given the pension providers details it may be arguable this was sufficient disclosure.

Also some of the subsequent notes stated:

“If you have not told us about any benefits, pensions or allowances you get, please tell us straight away.”

What are the instuctions the client has received on their form?

It is very arguable that the there will be no recoverable overpayment for any period prior to 10th April 2006. This is because Regulation 7(2)(c)(iv) of The Social Security & Child Support (Decisions & Appeals) Regulations 1999 which authorised an effective retrospective supersession in cases such as these was only introduced on 10th April 2006   and , as such ,could not have retrospective effect for a period before 10th April 2006.

Prior to 10th April 2006 there was no provision under regulation 7 of The Social Security & Child Support (Decisions & Appeals ) Regulations 1999 for the supersession ( in this context) to take effect from a date other than that prescribed in section 10 (5) (the date that it was given ) of the Social Security Act 1998.

Please call me at the Law Centre on 0191 2304777 if you would like to discuss this further.