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overpayment recovery - claimant lacked mental capacity to make claim
I understand all the moral positions being taken, but I just cannot see it helping the claimant.
In the event of the claim being deemed invalid (highly unlikely in my view), that leaves the LA in a position to seek recovery in any case through common law channels without even having to worry about benefits legislation.
If, as I believe, the claim is not invalid, the normal HB related legislation is engaged. Based on the info given so far means there was no error on the part of the LA, or DWP, or HMRC. The LA cannot be blamed for processing a claim that it had no legal basis to reject. In the absence of an error, the o/p is recoverable irrespective of any other consideration. The only issue left is that of targets.
Having had a thorough read of s.75 SSAA 1992 and HBR 101, I’ve changed my position on LL recoverability, but this doesn’t necessarily assist the claimant in the context of recovery.
s.75(3)(a) makes it clear that an overpayment is recoverable from the payee. HBR 101(1) provides an exception. In my view, the LL cannot meet that exception, so the o/p is recoverable from the LL.
However, s.75(3)(b) & HBR 101(2) provide for other persons from whom the o/p may be recoverable from as well as, or instead of, the payee. Based on the info so far, the claimant is squarely caught by either of sub-paras “a” or “b” of 101(2).
If it transpires the Attorney also failed to disclose, or misrepresented, a material fact, the overpayment will also be recoverable from her personally.
In law, the LA is entirely within its rights to seek recovery from either the LL or the clmt. The Attorney could also be billed in her capacity of Attorney for the clmt. If the o/p is recoverable from the Attorney, recovery could be sought from her personally. Where the o/p is recoverable from more than one “target”, the LA can legitimately seek recovery from any, or all, of those targets and that choice could only be challenged by way of JR. In my view, a JR would be futile. The LA could properly argue that as the claimant has resources to repay the o/p AND he is a legitimate target in law, it is not perverse to seek recovery from the claimant. Further, even if the claimant is “blameless”, the law relating to HB/CTB is structured in such a way that such situations are plainly envisaged - this has effectively been acknowledged by Cmmrs/Judges in the context of recoverability. Former Cmmr Henty even described the HB/CTB overpayment provisions as “draconian”, but still found against the claimant - and that was in a case where there had been an error by the LA (CH/0672/2003).
I understand all the moral positions being taken, .
the morality of it to one side, if he has absolutely no capacity, then he has no capacity.
I was always surprised that Re b went the way it did, not to mention the other cases in the same vein - it’s all very well giving clear instructions to a claimant, but if that claimant does not have the capacity or understanding to understand those instructions .... the more so given that the DWP always write their letters in gobbledegook anyway.
In other areas of law, no capacity means just that.
and now, since those cases, there is the mental capacity act as well.
and there’s the Human Rights Act
now it is probably the case that social Security Law takes no account of either of those Acts. but the HRA caps all, and IMHO the MCA must be relevant as well.
Having said all that, whether the attorney has the funds and the authority to spend the funds on taking legal advice on the issue is a whole other ball game…and it may be as well to repay the overpayment and then argue it out with the care home..
One question: was the enduring power of attorney registered with the court of protection?
The things about a power of attorney, including an EPA that has NOT been registered, are:
(a) that technically it is invalidated if the donor of the power becomes incapable of managing his own affairs, and
(b) it is revocable at the will of the donor and is not exclusive - it doesn’t oust the power of the donor to deal with his own affairs as well as the attorney (if he is capable of doing so).
When my mother went into residential care following the death of my father, she couldn’t cope with selling her house and the contents; so I did that for her under a power of attorney; but she continued to manage her own money and bank account. That wasn’t an EPA, but an unregistered EPA is exactly the same as any other power of attorney.
The EPA was not registered with the Court of Protection. I gather if it had been, there is an information sharing policy with local authorities, but unfortunately it has not been registered.
In that case it is hard to argue that the client lacked capacity since, if he did, the EPA was no longer valid at all - in law anyway. Oh what a mess. He needs an appointee, and I wouldn’t trust the person who has been his attorney if s/he failed to understand the DUTY to register it!