Messy overpayment appeal - any advice/thoughts?

Income support overpayment, due to undisclosed capital. Decision made 09/01/13, that client has been overpaid £49,000 due to failure to disclose. Representations are made to DWP on client’s behalf, and on 09/08/13, DWP agree that original o/p decision is erroneous and refer case back to o/p section for recalculation. Crucially, in this decision, the DWP state “As the overpayment decision has been found invalid - the appeal lapses.”

However, prearranged hearing still takes place on 15/08/13 but is adjourned for supplementary submission on the recalculation. In October, we receive notice of new hearing on 10/12/13. Intervening time between notification of hearing and the Tribunal is spent chasing DWP for new calculation, but we only receive this the day before the hearing by fax. Overpayment has been reduced to £3,800, in decision notice dated 05/12/13. New decision faxed over to Tribunal Service.

Tribunal hearing on 10/12/13 is adjourned again, with directions from Judge that:

* DWP must provide full explanation for o/p decision of 05/12/13, including dates and calculations, by 14/01/14.
* DWP must also provide any revised submissions as a consequence of this decision.
* If client wishes to appeal the new o/p decision, she must make Mandatory Revision request by 21/01/14.
* If such a request is made, DWP must consider by 18/02/14.
* If client wishes to appeal this decision, she must do so by 18/03/14.

First thing, given that DWP decision on 09/08/13 clearly states that original appeal has lapsed, are the Judge’s directions from the latest hearing legally valid and binding?

Second, should we wait for DWP subs by 14/01/14 before deciding whether to lodge MR on decision of 05/12/13, so that we know what they say in response to Judge? Or should we lodge protective MR now, as one month period on new decision expires on 04/01/14? On this last point, I am assuming a technically late MR request should be accepted on the basis that we’re obeying the directions of the Judge. However, does that assumption depend on the legality of the directions, as per point above?

This feels like a real mix-up of circumstances and I just want to be sure that if we proceed with the Judge’s directions on the appeal which apparently has lapsed but still seems to be going on, that the client won’t find themselves left high and dry. And this is before we even get into whether they should recover if she is found to have been overpaid…....

Q1.  No, if original decision revised in claimant’s favour under s9 SSA then appeal lapses and tribunal has no jurisdiction to hear the case without a further appeal being lodged.

Q2.  If decision of 5/12 disputed MR should be lodged now.  Deadline is actually 5/1/14.  Judges directions have no legal force.

Cheers Paul, I was thinking the same myself, but it’s hard to see the wood for the trees sometimes.

I saw similar last year; advised the Tribunal that the decision had been revised (they knocked £47 off a 4k overpayment) and the Tribunal; led by the District Judge, decided to proceed anyway.

Sad thing is that we lost but it’s fair to concede that I was kite flying…

R(IS) 2/08 says you can break an overpayment down into individual sub-decisions covering different periods - an appeal will not lapse if one of those periods is revised in the claimant’s favour but other(s) is/are not.  That the one Tony?

I’ve submitted the MR request last week, and written to HMCTS saying that sec.9 SSA and reg 30 D&A regs show that “old” appeal has lapsed and therefore directions not valid.

Hoping to speak to DWP later this week as I think their support in bringing halt to “old” appeal could be helpful (they’ve already been very good in this case, in agreeing to reconsider o/p downwards quite significantly).

HB Anorak - 16 December 2013 01:11 PM

R(IS) 2/08 says you can break an overpayment down into individual sub-decisions covering different periods - an appeal will not lapse if one of those periods is revised in the claimant’s favour but other(s) is/are not.  That the one Tony?

Don’t think that hits this case, the period concerned is the same in both decisions, it’s simply the amounts that have been dramatically reduced.

My concern stems from the client’s account of a quite hostile initial line of questioning from the Judge, before he ordered the adjournment, and the sense from his directions that he’d like to see the decision revised back towards the larger overpayment figure.

you don’t say much about the substantive appeal paul - might it be worth considering not appealing revised decision on basis that, if it goes to tribunal, could be revised back to original figure?

depends on facts i suppose.

Client experienced many years of domestic violence, including financial abuse, hence the DWP agreeing with our previous representations as to why their decision was incorrect Ros. Much of the capital that was deposited/withdrawn was from joint accounts, and took place after her partner had left her (although he continued to abuse her in various ways).

MR lodged purely to ensure we retain rights to appeal, but I am certainly considering advising client to accept decision re: lower overpayment, and then ask for discretion not to recover as she has very bad health (probably partly as a result of DV), and no income currently (as still being treated as having notional capital).

Appeal for £48k o/p has been lapsed now, MR for later decision has prompted a response saying “Thank you for your appeal….”?!

Trying to establish when/if any benefit will be put back into payment, which is proving stupidly tricky due to new claim being ESA and o/p being for IS, so neither section appears able to advise on what’s going to happen next.

Thanks for the advice though folks, very reassuring.

This case has now entered the twilight zone. Following the letter confirming previous appeal lapsing, we received notification that latest MR request accepted as an appeal. All ready to arrange for recovery with client when we can get her new claim into payment.

Then we received directions notice from District Judge saying that Judge who made decision cannot be reached (?!), that decision is stayed and requesting further information about what has taken place previously and various instructions to the parties. I respond with the documents relating to decisions, lapsing, etc (including information that Debt Recovery has already started making deductions for new overpayment from DLA).

Additionally, we then received huge bundle from DWP that stated latest overpayment decision had been made erroneously and answering many of the points made in the original adjourned directions notice. Basically aiming to get original decision re-opened and previous appeal reinstated - whether there is any connection between this and the directions from District Judge is extremely unclear.

Then, yesterday we received appeal bundle in relation to latest decision which starts with record of decision of 05.12.13 that £3800 been overpaid, and then the DWP submission is arguing that this decision is incorrect and that the overpayment should be ~£17,000. I’ve never seen a DWP submission being made that is arguing against their own decision in this way.

I’m frankly quite baffled as to what’s going on, DWP decision making is all over the shop on this case, and any due legal process appears to have been thrown out of the window.

Paul_Treloar - 07 February 2014 11:40 AM

Then, yesterday we received appeal bundle in relation to latest decision which starts with record of decision of 05.12.13 that £3800 been overpaid, and then the DWP submission is arguing that this decision is incorrect and that the overpayment should be ~£17,000. I’ve never seen a DWP submission being made that is arguing against their own decision in this way.

Hi Paul, I had a case where debt management changed the amount of OP (determined by the BDC) massively (twice), in the end it was a case of filtering the revised decisions to establish which one was the valid decision - took forever but in the end able to show that latter revised decisions were not valid such that smaller OP stood.

2014 UKUT 23 AAC on HMCTS website (search most recent decisions) MAY be relevant

sovietleader - 07 February 2014 01:54 PM

2014 UKUT 23 AAC on HMCTS website (search most recent decisions) MAY be relevant

Thanks but can’t work out where I’m supposed to be looking and google isn’t helping???

here you go ..

http://www.osscsc.gov.uk/Aspx/view.aspx?id=4095

shawn - 07 February 2014 02:46 PM

here you go ..

http://www.osscsc.gov.uk/Aspx/view.aspx?id=4095

thanks shawn