DLA with no reviews!!

My client was awarded DLA in 1997. After that there was no review until 2011, when a supersession stopped all benefit after a fraud interview. He’s now being slammed for overpayment from 2007. He has ongoing mental health problems, lacks insight into both his disability and what changes of circumstances he should have reported (he still has the same condition and is on the same medication as 1997 - though it is clear that his condition has improved). At appeal I’m planning to argue that he did not know and could not reasonably be expected to know that he should have reported his change of circumstances. He should therefore not have to pay back 4 years-worth of benefit.

However, my question is:

Does DWP bear any responsibility for failing to conduct a review for 14 years? His DLA was not awarded “for life”, and his condition was not one that would not be expected to improve.

Tony Bowman - 30 October 2012 12:12 PM

When was the original award set to expire?

As far as I can tell, DWP never set an expiry date. Hence the problem. I’ve sent a letter to them asking for the reason for not reviewing the award for 14 years. I’m waiting for their reply.

If the relevant changes to be disclosed were clearly and unambiguously notified to him then his mental capacity is irrelevant as a matter of law, following B v Secretary of State for Work & Pensions CA [2005], as to the right of the DWP to recover an overpayment.  The duty to disclose under those circumstances is absolute and not open to qualification.  If the instructions were unclear or ambiguous, or not given at all, then his state of mind can be a defence depending on the facts.  You need to see what the DWP can come up with regarding this.

CDLA/2348/2010 - sets out test clearly -

‘The general rule is that supersession in a DLA case is not retrospective where the change of circumstances involved relates to a “disability determination”.... However, there is an exception where the claimant was both required to notify the change of circumstances in question and knew or could reasonably have been expected to know that the change of circumstances should be notified to the Department. The effect is that, unless the claimant has clearly been at fault, there is no overpayment and so any question of the recoverability of such an overpayment simply does not arise.’ (paragraph 27)

‘It follows that such a case requires the decision maker, and on appeal the tribunal, to give careful consideration to both (i) the law governing the requirement to notify changes (see regulation 32 of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968), which imposes two different tests, depending on the circumstances) and (ii) the evidence as to the nature of the instructions given to the claimant at various times (and their degree of precision). This will also involve consideration of whether the conditions of entitlement to DLA were made out at all material times. Assuming that the Secretary of State had made a valid supersession decision with effect from 14 January 2003, the tribunal should then have considered whether the requirements of section 71 of the Social Security Administration Act 1992 were satisfied as regards the recoverability of any overpayment.’ (paragraph 28)

here’a link to briefcase summary -

http://www.rightsnet.org.uk/briefcase/summary/supersession-effective-date-of-decision-where-claimant-alleged-to-have-been/

Thanks Nevip, Ros and Tony.
I’m puzzled. What Nevip says seems to contradict what Ros says (in the case of my client who did not realise that he should have notified DWP). My brain is somewhat slow, so if someone could spell it out for me, I’d be very grateful.
Unfortunately I haven’t yet been able to persuade my poor advice centre to pay a subscription, so I don’t have access to briefcase.

The appeal pack includes a copy of the standard leaflet which would have been sent to him at the time of the award in 1997 (I think it was the 1993 edition). This will have included something to say he should notify changes. Unfortunately I’m only part-time and won’t be able to check the exact wording for a few days.

I also haven’t mentioned that this guy has limited English - especially very limited reading ability. His language is Pahari/Mirpuri - an unwritten language from Azad Kashmir.

here’s a link to CDLA/2348/2010 -

http://www.osscsc.gov.uk/Aspx/view.aspx?id=3210

What was the fraud interview about, was it DLA or something else? Was there any evidence revealed in it relevant to an improvement in the claimants condition in 2007?

If it was about something other than DLA or it only dealt with how he is now then it might be argued that the DWP have not specifically addressed the alleged improvement in his condition at or around the date from which they say he was overpaid.

I seem to remember that when the Sec of State supersedes on his own initiative the burden of proof is placed on him to identify an impovement in the claimants condition such that they are not entitled to the existing award of DLA.

If the interview and other evidence only concerned something unrelated to his care or walking problems and/or did not identify some specific improvement back in 2007 it it may not have addressed this adequately and (providing the Tribunal finds in his favour) the overpayment would be reduced or simply cease to exist.

In my experience the DWP often cites surgery(such as a hip replacement) or discharge from the care of a CPN to say that a claimant improved from a certain date but it may be that the claimant’s recovery may have been prolonged, the surgery may not have been successful at all or they were discharged by the CPN because they were non compliant and in fact continued to have problems which entitled them to DLA.  The current recovery may have in fact started considerably later than 2007.

edited to rectify spelling errors

Pete C - 31 October 2012 05:35 PM

What was the fraud interview about, was it DLA or something else? Was there any evidence revealed in it relevant to an improvement in the claimants condition in 2007?

If it was about something other than DLA or it only dealt with how he is now then it might be argued that the DWP have not specifically addressed the alleged improvement in his condition at or around the date from which they say he was overpaid.

I seem to remember that when the Sec of State supersedes on his own initiative the burden of proof is placed on him to identify an impovement in the claimants condition such that they are not entitled to the existing award of DLA.

If the interview and other evidence only concerned something unrelated to his care or walking problems and/or did not identify some specific improvement back in 2007 it it may not have addressed this adequately and (providing the Tribunal finds in his favour) the overpayment would be reduced or simply cease to exist.

In my experience the DWP often cites surgery(such as a hip replacement) or discharge from the care of a CPN to say that a claimant improved from a certain date but it may be that the claimant’s recovery may have been prolonged, the surgery may not have been successful at all or they were discharged by the CPN because they were non compliant and in fact continued to have problems which entitled them to DLA.  The current recovery may have in fact started considerably later than 2007.

edited to rectify spelling errors

Yep. It was about DLA. They’d received information that he was better and had gone abroad. 2007 was the date on the letter from his GP that my client produced at the interview, saying he was fit to fly.

Just because his GP said he was fit to sit on a plane for few hours doesn’t necessarily mean he hasnt got any care needs, did he go on his own or did he take a carer with him?

Below are the CAA guidelines on fitness to fly if that is any help.

http://www.caa.co.uk/docs/2497/Fitness To Fly - May 2012.pdf

It’s difficult to advise without knowing the facts of the individual case. In the present case, for example, is the claimant’s lack of insight into his disability such that he cannot be reasonably expected to realise that his needs have lessened?

The relevant wording in the notes accompanying a DLA uprating letter is as follows:

“We need to know if anything you told us about your illness or disability changes.  Please tell us if things get easier or more difficult for you.  And tell us if you need less help or more help.”

That for me does not satisfy the clear and unambiguous requirement under the first test of B v SOS.  And it’s difficult to see how it could be reformulated to make it so.  Terms such as “easier”, “less” and “more” are value judgments and can only be decided by inference from a comparison of the level of care/mob needs at two different points, eg 1997 and 2007.  And as we know such comparison also needs to account for variable conditions - just because someone objectively has fewer needs in June 2007 doesn’t mean that that would still be true in, say, Sept 2007, nor might it have been the case in March 2007.

An objective lessening of need can itself be a change of circs - R1/05 (DLA).  In that case, the claimant had fewer needs for attention/supervision outdoors due to her adapting to her hearing aids.  She consequently lost low rate mobility on supersession.  A fundamental protection against the potential harshness of a new decision maker coming along years later and making a new, inherently subjective, decision about the level of needs is, as others have said above, the requirement that a claimant either knew or could reasonably have been expected to know that the change of circumstances should have been notified.  I’ve always submitted that that’s a subjective test, ie what the claimant could reasonably have been expected to know given his level of education, the effects of any disabilities etc, rather than what a reasonable person would have known.

And I recently argued that even where the level of needs is objectively less than those used to justify a previous award, it simply does not follow that the reduced level of needs represents a change of circumstances.  Instead, I’ve argued that the DM needs to show that the original award could not have been rationally made based upon the new, reduced level of need.  If it could still have been rationally made then it’s irrelevant that the present decision maker, or the present tribunal, or even 8 out of 10 tribunals would not have made that award based upon the current needs.  Rational in this sense should be assessed using the bounds of reasonable judgment which the House of Lords used in Moyna.  As long as the new level of needs would not be outside the bounds of reasonable judgement governing the original DLA award , then there has legally been no change of circs.

I argued that because I was sick of seeing DWP submissions using the original client claim form as the BASIS for contrasting the current level of needs.  Of course, an original decision is what’s being superseded not an original claim form.  So even if the client had originally stated in her form that she had massive needs 7 days a week it doesn’t matter.  The only question the tribunal should be asking is whether the reduced needs it finds would have made the continuation of the original award irrational under Moyna.  I don’t think this argument is inconsistent with R1/05(DLA) either.  In that case, it was at least arguable that the woman’s needs had reduced so much that the continuation of her low rate mobility component may have been irrational, though the argument wasn’t raised before the Northern Ireland Commissioner.