AIP & duty to disclose

I’m not in the office at present so have no access to my reference materials but this case is bugging me so am throwing it open to the floor as it were.

Client has sizeable (60k) PC overpayment. In summary, a property was sold and bulk of proceeds distributed amongst client’s children. PS has made deprivation decision currently under appeal. I think we have a reasonably good case on the deprivation aspect but I’m looking for a fall-back argument re recoverability should our deprivation argument fail. The bundle is woefully spartan but from what is there it is certain that PS was aware property was on the market at the time of the claim (they correctly disregarded the capital value on basis it was in process of being sold, which is documented) and seems very likely that regardless of the ongoing sale, PS set an AIP of 5 years. Client had recent HV from PS with review form (issued by AIP team) and it was at this point that PS became aware that the property had been sold (which happened within a few months of the original PC claim).

From research, the SOS can retrospectively end an AIP where it is clear the original AIP was set in error and I am aware that caselaw does not support my client. However, I am really struggling with the recoverability angle. My client speaks only a few words of English and wouldn’t understand an AIP if it jumped up and bit him (in fact, I have a sneaking suspicion he believed he was claiming his RP rather than PC) but that aside, from what I recall, PS award letters where an AIP has been set specify that claimant has no duty to declare changes to retirement provision during the AIP period (or words to that effect). If a retrospective AIP decision is made does a claimant therefore have a corresponding retrospective duty to disclose? If so, how could they possibly have been aware of that? It seems most unfair and I feel I’m missing something somewhere.

Any thoughts?

On the original claim the Decision Maker should not have set an AIP.  The absence of an AIP would then have placed the claimant under a duty to disclose the fact that the property was eventually sold.  Good practice would also have been to have set a ‘brought forward date’ of twenty six weeks to check whether the property had been sold or, if it had not been sold, to check that reasonable steps were still being taken to dispose of the property in which case further time may have been allowed.  Because an AIP was set then the claimant was only under a duty to report very specific changes of circumstance and the sale of the property would not be one of these.  Form INF4(PC) used to be sent to the claimant to explain the changes they must report with an AIP in place and changes they must report without an AIP in place.  There may be a copy of this with the appeal bundle.  There is nothing wrong with the Decision Maker revising the decision and removing the AIP from the original award.  In fact this is the only way that an overpayment decision can be generated.  This cannot impose a retrospective duty on the claimant to report the sale of the property.  The duty to report the sale of the property was not made clear to the claimant and in fact you can argue that this duty did not even exist at the date of the decision to award Pension Credit.  This looks like a case of DWP error and the overpayment is not recoverable.

One slight proviso to the above.  If the claimant was living in the property while it was up for sale and then eventually sold it and moved to a new property, they would have been under a duty (AIP or no AIP) to report the change of address.

Thanks for that- very useful.

As I say, the bundle is very much on the spartan side and does not include any of the docs relating to the original decision so at this stage it is impossible to tell what client was sent (or, indeed, if an AIP was set although the circumstantial evidence strongly suggests that it was). I shall press on and see what happens.

Client was not living in the property and there were no changes which would otherwise have automatically ended the AIP.