Pension credit overpayment

In 2007 on the death of her husband a woman was assisted to claim PC by her son. When making the claim they declared over the phone that she would receive 1/2 of her late husband’s Occ. Pen. They were told to send evidence of this when they received it. This info was sent a few weeks later by recorded delivery. PC was awarded and all seemed o.k. until last year when the pension service realised they were not taking into account the Occ. Pen. The PS now say that there is a recoverable OP from 2007 and in the appeal papers say that the Occ. Pen was not disclosed to them. The son kept the recorded delivery stub for 4 years but then destroyed it thinking all was ok.

There is a record of the initial conversation in the appeal papers.

In the intervening years they received no chase up from the Pension service for the information.

We all know that the pension service do lose documents and can make mistakes so we will argue that the document was sent and in all likelihood was received by the PS. Is there any case law that might help with this one?

Its tricky, as your client would receive pension award letters every feb/march with a breakdown of her income, and how much PC top up is required.
It states in the letters that if any of the figures are incorrect then they should contact the pension service immediately, so they put the onus on the claimant to check the award.

Even if he had the recorded delivery stub it means nothing : just that a letter was sent. It wont prove what was in the letter in question regarding this unfortunately.

I think this may be recoverable.

Things have certainly improved in such cases if claim done over phone with the opportunity to have a 3 way telephone call through to the private pension provider for info on what is to be paid. Agree that that there is an expectation that the award details will be checked and if not, then it is difficult to lay blame at the awarding department.  Had a similar case myself a few years ago.  Doesn’t help though that PS seem to have stopped issuing full details of how award has been calculated after the initial decision.  I have to ask them for this when it appears to be incorrect. In that situation if there is an error then there is the opportunity to successfully challenge. Had a case where it was a change in circs, letter issued saying no impact and PGC credit still due and it wasn’t. Also resulted in successful challenge against HB/CTR overpayment linked to being paid on PGC and request to repay to LA.

I have very similar case, with 92 y/o woman who was paid (incorrectly) SDP following an award of AA. She had adult son living with her for many years prior to the award, and was automatically transferred to PC in 2003, having been claiming IS(MIG) previously.

She never failed to disclose son was living there, Pensions Service haven’t shown any information that demonstrates they gave clear instructions as to what should have been disclosed (e.g. the INF4 states that claimant “must tell us if anyone joins your household”, which wasn’t the case as he was already living there), and yet they are claiming recoverable o/p of ~£20k.

In a deep irony, the reason that they became aware of son was when he applied to become mother’s appointee due to her increasing lack of capacity.

We’ve appealed on basis she hasn’t failed to disclose and waiting to see what happens, hearing date for end of next month, so we’ll see what happens.

I can’t suggest case law off the top of my head, but don’t give up. How credible are your client and her son? Take the matter to appeal and see if a judge thinks differently from DWP. The reliability of the son’s testimony will be important here and whether he has an accurate recollection of events at the time. This sort of thing does happen and I had a case just this week of JCP failing to take account of an occupational pension that was - I am told - notified at the time, which I am inclined to believe as the old HB award contains evidence of the notification of the occ pen.

Remember, you don’t need to prove beyond reasonable doubt, just on the balance of probability. The length of time that has passed makes it difficult to remember things and retain evidence of notification, which may work in your clients’ favour.

Neglecting to scrutinise the award notice is an unfortunate oversight, but if the client had difficulty dealing with these things, inclined to trust official paperwork and had no reason to doubt its veracity, she could - maybe - be let off. The appeal bundle should also include a copy of the claim form. Except it’s probably been deleted.

Best of luck.

I agree. I had an almost identical case recently. The client’s appeal was upheld. PS requested the SOR but took no further action once it was produced.