Duty on DWP to prove changes in legislation notified to claimant

On the narrow point of the method of notification.  If you’re asking whether the DWP must prove notification by providing an actual copy of the actual letter sent to the claimant then the answer is not necessarily.  See CIS/3486/2007: attached.

How much is the overpayment and what period does it cover?  The earliest the o/p can commence is 1/4/06.

Hi all. Thanks for replies. The overpayment runs from 6/4/01 - 22/10/06. I am arguing work was therapeutic until 10/4/03 (incl 12 month transitional protection). The tricky bit re the DWP already knowing is that they did not know! I have submitted they did not need to know about the therapeutic work, simply that there must be evidence from doc re therapeutic nature (which I now have retrospectively) but they were never informed and rules from 8/4/02 required notification from claimant.

Note sure why the overpayment could not go back to this date?

I will look at case now.

Thanks again.

Sarah H - 28 August 2013 01:58 PM

..Note sure why the overpayment could not go back to this date?

The overpayment cannot start before 10/4/06 (sorry I said the 1st earlier).  The authority is SSWP v JL (DLA) [2011] UKUT 293.  I have a very similar SDA o/p before the F-tT at present where the legal section of DWP have accepted my submission that a supsersession based on a non-medical change of circs cannot commence before 10/4/06.  Whilst JL concerned DLA its reasoning extends to SDA and IB.

CIB/763/04 established that the Decision and Appeal Regs only allowed a supersession based on a non-medical change of circs, eg the claimant doing work, to be effective from the date of the supersession itself not from the date of change.  That flaw in the regs was subsequently corrected from 10/4/06 by amending regs.

In SSWP v JL the SSWP argued that because its supersession in that case was made after 10/4/06 it could be effective prior to 10/4/06.  In other words, they contended that the amending regs had retrospective effect.  A three judge panel of the UT rejected that argument.  Whilst a supersession made after after 10/4/06 could quite happily be based on a change of circs occurring before 10/4/06, it could not be effective before 10/4/06.  I trust that the supersession of your client’s SDA entitlement was made relatively recently, certainly after 10/4/06.

There is, therefore, simply no overpayment prior to 10/4/06 in your client’s case.  Whether the remainder of the o/p from 11/4/06 is legally recoveralbe will depend on the instructions he received at the time.  The SSWP will need some printout to show he received such instructions.  They did change the wording of the instructions following the Hooper debacle.  In Hooper, you’ll recall the instructions were to the effect that the claimant “should” notify the DWP which the CA found was not clear enough to create a duty to disclose.  The 2006 instructions do use “must” - I know that from my current F-tT case.  However, you could possibly argue that when looking at whether the instructions are clear and unambiguous you are not restricted to looking at one document.  Eg, he may have still, in 2006, been under the influence of the Hooper type instructions that he would have received circa 2002/03.

Many thanks Tom H. Will have a good look into that. Waiting for a date for hearing, will update once heard.

Thanks again.

Tom’s loophole appears only to apply to the effective date of a superseding decision - if there have been any awarding decisions made in ignorance of the material fact that the claimant was working they could presumably be revised so as to create an overpayment before April 2006?

HB Anorak - 29 August 2013 09:04 AM

..if there have been any awarding decisions made in ignorance of the material fact that the claimant was working they could presumably be revised so as to create an overpayment before April 2006?

Of course.  In my case and the vast majority of cases like this the person would have been on SDA before 2001 (it was abolished for new claims, as we know, on 6/4/01).  Consequently, any changes to decisions, eg if a person starts work, would be by way of supersession (change of circs) not revision.

What’s interesting about the present o/p is its start date of 6/4/01.  Either the client here is unlucky enough to be one of the last ever claimants of SDA and working when she makes that SDA claim, in which case yes revision would be appropriate, or there’s some other reason for the o/p starting from that date in which case it’s likely to be, as with the vast majority of these cases, a supersession of entitlement that’s under appeal as well as the overpayment decision itself.

Having looked through all relevant decisions, I do not think this is going to work in my case.  I am not convinced that the Tribunal or DWP would accept that the change of circs here is non-medical. 

In my client’s case, I think the supersession IS in relation to a medical based decision and so can take effect from the date of change.  She was working.  That work did not fall to be disregarded as permitted work.  She is therefore not treated as being incapable of work. Am I misinterpreting what a medical based decision is?  s68 of CBA 1992 set out the requirement for SDA one of which obviously being that a person is incapable of work.  Here, my client has to be found capable of work which must be a medical based decision?

Sarah H - 05 September 2013 09:05 AM

 
..Am I misinterpreting what a medical based decision is?

Yes.

The Dept use medical/non-medical change of circs as shorthand.  The D&A Regs (pre and post 10/4/06) do not even mention medical or non medical changes of circs.  Reg 7 D&A provided that a change of circs in relation to an incapacity/disability determination took effect from the date of change and that any other change (ie not related to an incapacity/disability determination) only took effect from the date of the decision. 

Reg 7A defined (and still does) incapacity and disability determinations for this purpose.  Incapacity determination is one made under Regs 24, 10 or 27 Incapacity for Work (ICW) Regs 1995.  And disability determination decides whether a person is disabled for the purpose of section 68 SSCBA (ie, whether the extent of their disablement as measured by the relevant test is at least 80%). 

I wasn’t working in benefits when SDA was active but I understand that those whose qualifying period started before their 20th birthday only had to satisfy the incapacity determination.  Those whose qualifying period started after 20 had to satisfy both incapacity and disability tests.

But it doesn’t matter whether your client had to satisfy the incapacity determination alone or both it and the disability determination because the basis of the supersession ending SDA entitlement in the present case, as with mine, is a determination treating the person as capable of work under Reg 16 ICW Regs 95.  That is not an incapacity determination under the above definition so any supersession would commence from the date the supersession was made or 10/4/06 whichever is the earlier (rather than the date of change, ie the date he started the unauthorised work).

My client was doing therapeutic work for years before its replacement with permitted work in 2002.  Soon after that point he upped his hours above the 16 hrs p/w threshold which meant he was no longer doing permitted work.  My submission was that, because the supersession ending his entitlement to SDA was made after 10/4/06 his entitlement could not end before 10/04/06 in accordance with SSWP v JL.  Consequently, there could be no overpayment before that date so recovery could be sought at the earliest from 10/4/06.  The DM requested guidance from the DWP legal section in Leeds and I’ll post (when I’m back at work next week) an anonymised copy of their response agreeing with me on both points.