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Mandatory Reconsideration for an overpayment caused by an ESA adviser giving incomplete advice on DLA
Hi
I have a client who has had an overpayment of DLA for being in hospital for four months. He should have informed the DLA department after being in hospital for 28 days.
However, the client has told me that before he went into hospital, he asked his Employment and Support Allowance adviser if he needed to let the DLA and ESA departments know about him going into hospital. The adviser said that he did not have to let the ESA department know but did not make any comment about whether the DLA department should be informed.
Is it worth asking for a mandatory reconsideration?
Thanks
[ Edited: 15 Jul 2014 at 05:02 pm by iut044 ]It depends. The duty to notify the DLA unit can later be modified by word (written or oral) or deed. It’s difficult. First, he has to convince that such a conversation took place if the DWP officer denied that it did. Second, if he can convince, then it would be best if his version tallied with that of the DWP officer. If not, he has to convince that his is the more likely version. Finally, the omission of the DWP officer has to be such that the claimant had a reasonable belief that the original duty had been so modified that further disclosure was not required.
However, there could still be a problem. The duty of continuing disclosure has been raised where the disclosure has not been to the issuing office. It has been held that if circumstances warrant (i.e. payments continue) then the claimant is under a duty to check that the information has, in fact, been passed on.
This case looks difficult on the bare facts presented.
I’m not sure I agree. This comes down to credibility. DWP are supposed to keep records of such conversations. They don’t. If the client can broadly identify the date; the gender of the person and some flesh on the bones of what exactly was said then they’re in business on that front immediately. Plenty of case law on that area as well as the concept of being entitled to rely on professional advice and the idea of a ‘mistaken belief, reasonably held’. Generally though tribunals have no problem with such cases as the absence of evidence from DWP is a killer when combined with the fact the claimant believed there was nothing to disclose.
Then you have the issue of why the person was admitted. If it was a broken leg then clearly it could be argued they could have made enquiries as to what and how to disclose their change of circs. (putting aside that “what” may have already been addressed). Active delegation to a 3rd party might come into play there but usually not.
On the other hand, if it was (say) a major stroke or a heart attack, then the whole question of knowledge of the material fact comes into question plus the ability to make a disclosure. I usually sit in front of tribunals and pose the question “in all the circumstances what is the additional thing you think the appellant could have done at the time”?
I challenge these sorts of decisions on a regular basis and it tends to come as a shock to DWP that their total lack of evidence to contradict even the barest amount of credible info. from an appellant might pose a problem when it comes to some ancient concept known as the “balance of probabilities”.
On this basis it’s possible to win cases as obtuse as
“the security guard at Albert Bridge House told me I didn’t need to do anything else. How was I supposed to know he was just the security guard?” and
“I made a phone call. It was in the afternoon and I spoke to a woman” versus “we have no record of a call.
A bit more positivity please.
I’m not sure I agree. This comes down to credibility. DWP are supposed to keep records of such conversations. They don’t. If the client can broadly identify the date; the gender of the person and some flesh on the bones of what exactly was said then they’re in business on that front immediately. Plenty of case law on that area as well as the concept of being entitled to rely on professional advice and the idea of a ‘mistaken belief, reasonably held’. Generally though tribunals have no problem with such cases as the absence of evidence from DWP is a killer when combined with the fact the claimant believed there was nothing to disclose.
Then you have the issue of why the person was admitted. If it was a broken leg then clearly it could be argued they could have made enquiries as to what and how to disclose their change of circs. (putting aside that “what” may have already been addressed). Active delegation to a 3rd party might come into play there but usually not.
On the other hand, if it was (say) a major stroke or a heart attack, then the whole question of knowledge of the material fact comes into question plus the ability to make a disclosure. I usually sit in front of tribunals and pose the question “in all the circumstances what is the additional thing you think the appellant could have done at the time”?
I challenge these sorts of decisions on a regular basis and it tends to come as a shock to DWP that their total lack of evidence to contradict even the barest amount of credible info. from an appellant might pose a problem when it comes to some ancient concept known as the “balance of probabilities”.
On this basis it’s possible to win cases as obtuse as
“the security guard at Albert Bridge House told me I didn’t need to do anything else. How was I supposed to know he was just the security guard?” and
“I made a phone call. It was in the afternoon and I spoke to a woman” versus “we have no record of a call.
A bit more positivity please.
Thanks for your help Mike. We know the name of the adviser who gave the advice. The client was admitted to hospital with mental health problems. Is the fact that the adviser made no comment on the DLA a problem?
[/quote]
Thanks for your help Mike. We know the name of the adviser who gave the advice. The client was admitted to hospital with mental health problems. Is the fact that the adviser made no comment on the DLA a problem? [/quote]
I can see why it might be but it depends on the context. Clt. is telling you this now. How good is their recollection? How close to admission was this conversation? Voluntary admission v sectioned? State of their mental health when they had this conversation could cast it in many different lights.
Have to say if you can name and describe the adviser (and presumably pin it down to a couple of dates given the who and where) DWP probably have more problems than your client evidentially. Client made enquiries from a professional and was entitled to act in the manner they felt appropriate to the conversation at the time. So, if they thought the silence odd but didn’t query it then it may be an issue. On the other hand if they know their adviser and had previous experience of such silences meaning “no” then I don’t see an issue.
It’s not a question of a lack of positivity. This is not a case of a person having a conversation with an officer of the issuing office and relying on a declaration of that officer. Those cases are more straightforward. In this case there was no declaration regarding disclosure to the DLA unit, only silence. In such a scenario the contents of the conversation are everything as to whether the claimant could reasonably infer that he had nothing further to do.
Even so, providing reg’32(1A) of the Claims & Payments Regs is in play, the claimant was under a duty to inform the DLA unit himself no matter what went on with the ESA office. In Hinchy, at para 32, Lord Hoffman said, “the claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the department. In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another”. The crucial question for the claimant here is whether the silence of the ESA officer is sufficient to modify reg’ 32(1A). In my view, that is far from straightforward, particularly as I have no idea of the full contents of the conversation.
It’s not a question of a lack of positivity. This is not a case of a person having a conversation with an officer of the issuing office and relying on a declaration of that officer. Those cases are more straightforward. In this case there was no declaration regarding disclosure to the DLA unit, only silence. In such a scenario the contents of the conversation are everything as to whether the claimant could reasonably infer that he had nothing further to do.
Even so, providing reg’32(1A) of the Claims & Payments Regs is in play, the claimant was under a duty to inform the DLA unit himself no matter what went on with the ESA office. In Hinchy, at para 32, Lord Hoffman said, “the claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the department. In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another”. The crucial question for the claimant here is whether the silence of the ESA officer is sufficient to modify reg’ 32(1A). In my view, that is far from straightforward, particularly as I have no idea of the full contents of the conversation.
Agree with the first part. That’s what my last post said.
Disagree with the second part. Don’t see that it’s relevant. There’s no assumption about procedures on the face of it in this case. Client asks question of a professional. Interprets answer and acts upon it. Doesn’t appear to have assumed left hand will tell right hand. Doesn’t appear to be a Hinchy case at all. Appears to have interpreted silence as doesn’t need to disclose. Acted accordingly. Only question then is whether that is reasonable. I don’t see why not.
In practice, tribunals look at info. available to claimant in order to establish whether they knew there was a duty to disclose and that will include the tiresome old “we sent them a booklet” argument and such conversations as this and whether this is a scenario which has, for example, occurred previously and thus the claimant arguably ought to have known what to do.
What I’m not seeing here is any reason at all to NOT go for MR.
It’s not a question of a lack of positivity. This is not a case of a person having a conversation with an officer of the issuing office and relying on a declaration of that officer. Those cases are more straightforward. In this case there was no declaration regarding disclosure to the DLA unit, only silence. In such a scenario the contents of the conversation are everything as to whether the claimant could reasonably infer that he had nothing further to do.
Even so, providing reg’32(1A) of the Claims & Payments Regs is in play, the claimant was under a duty to inform the DLA unit himself no matter what went on with the ESA office. In Hinchy, at para 32, Lord Hoffman said, “the claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the department. In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another”. The crucial question for the claimant here is whether the silence of the ESA officer is sufficient to modify reg’ 32(1A). In my view, that is far from straightforward, particularly as I have no idea of the full contents of the conversation.
Agree with the first part. That’s what my last post said.
Disagree with the second part. Don’t see that it’s relevant. There’s no assumption about procedures on the face of it in this case. Client asks question of a professional. Interprets answer and acts upon it. Doesn’t appear to have assumed left hand will tell right hand. Doesn’t appear to be a Hinchy case at all. Appears to have interpreted silence as doesn’t need to disclose. Acted accordingly. Only question then is whether that is reasonable. I don’t see why not.
In practice, tribunals look at info. available to claimant in order to establish whether they knew there was a duty to disclose and that will include the tiresome old “we sent them a booklet” argument and such conversations as this and whether this is a scenario which has, for example, occurred previously and thus the claimant arguably ought to have known what to do.
What I’m not seeing here is any reason at all to NOT go for MR.
You are correct that the client interpreted the adviser’s silence as that DLA could be paid indefinitely whilst in hospital.
We’ll have to agree to disagree. Where did I say there was “no reason at all to NOT go for MR”? I said it would be difficult not unarguable.
Thanks for your help Mike. We know the name of the adviser who gave the advice. The client was admitted to hospital with mental health problems. Is the fact that the adviser made no comment on the DLA a problem?
I can see why it might be but it depends on the context. Clt. is telling you this now. How good is their recollection? How close to admission was this conversation? Voluntary admission v sectioned? State of their mental health when they had this conversation could cast it in many different lights.
Have to say if you can name and describe the adviser (and presumably pin it down to a couple of dates given the who and where) DWP probably have more problems than your client evidentially. Client made enquiries from a professional and was entitled to act in the manner they felt appropriate to the conversation at the time. So, if they thought the silence odd but didn’t query it then it may be an issue. On the other hand if they know their adviser and had previous experience of such silences meaning “no” then I don’t see an issue.
The conversation was very close to admission.
Let’s assume they will have seen their personal adviser a number of times. Feel free to correct me.
I have yet to come across the tribunal that would interpret against the client in this scenario. They took advice. They interpreted the response and acted accordingly. They had no information to suggest otherwise. They were admitted to hospital, a place which also has its fair share of professionals who might just have some experience of what happens to a persons benefits and yet no-one corrected that impression. Having sought advice, I see no reason why any reasonable person would act in contradiction of that. Bear in mind that the context here is also that your claimant will inevitably have the mind-set that what their personal adviser says goes, else they’d be living in sanction hell. I don’t think it’s that hard to make the case that if you ask your personal adviser a question you probably don’t repeat it if you’re unhappy with the answer! In this case there doesn’t seem to have been much unhappiness with the answer/silence and the proximity to admission would suggest a deterioration in mental health that may also have hindered the ability to interpret/challenge.
nevip - you didn’t say not to go for it but you suggested it looked difficult on the facts. That’s where we presumably agree to disagree. Personally, I’d go for this every time.
Hi
I have a client who has had an overpayment of DLA for being in hospital for four months. He should have informed the DLA department after being in hospital for 28 days.
However, the client has told me that before he went into hospital, he asked his Employment and Support Allowance adviser if he needed to let the DLA and ESA departments know about him going into hospital. The adviser said that he did not have to let the ESA department know but did not make any comment about whether the DLA department should be informed.
Is it worth asking for a mandatory reconsideration?
Thanks
Was the adviser a DWP person or somone from an outside orgainsation- I have had at least one case where an outside organisation accepted responsibility for misinforming the client and consequently repayed the overpayment so the client was not worse off in the future
(edited to add) Did the hospital notify DLA of his admission, some do and some don’t, there doesn’t sem to be a consistent approach. I would also check the dates of the overpayment, in MH cases the patient often goes home on s.17 leave months before they are discharged but the DLA untit doesn’t realise this and assumes they were actually in hospital right up to the date of discharge.
[ Edited: 16 Jul 2014 at 03:23 pm by Pete C ]Hi
I have a client who has had an overpayment of DLA for being in hospital for four months. He should have informed the DLA department after being in hospital for 28 days.
However, the client has told me that before he went into hospital, he asked his Employment and Support Allowance adviser if he needed to let the DLA and ESA departments know about him going into hospital. The adviser said that he did not have to let the ESA department know but did not make any comment about whether the DLA department should be informed.
Is it worth asking for a mandatory reconsideration?
Thanks
Was the adviser a DWP person or somone from an outside orgainsation- I have had at least one case where an outside organisation accepted responsibility for misinforming the client and consequently repayed the overpayment so the client was not worse off in the future
The adviser is a DWP employee.
Hi
I have a client who has had an overpayment of DLA for being in hospital for four months. He should have informed the DLA department after being in hospital for 28 days.
However, the client has told me that before he went into hospital, he asked his Employment and Support Allowance adviser if he needed to let the DLA and ESA departments know about him going into hospital. The adviser said that he did not have to let the ESA department know but did not make any comment about whether the DLA department should be informed.
Is it worth asking for a mandatory reconsideration?
Thanks
Was the adviser a DWP person or somone from an outside orgainsation- I have had at least one case where an outside organisation accepted responsibility for misinforming the client and consequently repayed the overpayment so the client was not worse off in the future
The adviser is a DWP employee.
If the conversation is exactly as set out here then I think that the officer breached the DWP’s Service Standards-
“We aim to give you accurate information and the right advice to help you;
Get the pensions or benefits you are entitled to.
Understand the conditions of recieving your pension or benefits…...........”
It appears that this officer was asked a direct question (and a very simple and direct question at that) but failed to give any reply, not even “I don’t know, perhaps you should check with DLA”. I would have thought that this falls quite along way short of what a claimant should expect from an officer and they might possibly make an ex gratia payment for maladministration.
The fact that it was such a simple question is worrying, I can’t imagine that anyone involved with benefits doesn’t know about the need to disclose and (with all due respects to the claimant) I think there would have to be some fairly convincing evidence about the interview.
[/quote] The fact that it was such a simple question is worrying, I can’t imagine that anyone involved with benefits doesn’t know about the need to disclose and (with all due respects to the claimant) I think there would have to be some fairly convincing evidence about the interview. [/quote]
This may be my favourite quote of 2014.
“involved with benefits” and “personal advisers” are often mutually exclusive. Training is sufficiently inadequate to cover very little about benefit qualifying conditions and I very much doubt there would be any training re: disclosure. That chimes nicely with DWP/JC+ statements about being able to do better off calcs. When you dig beneath the surface they clearly don’t get training on HB/CTR and thus housing costs don’t even enter into it. There’s a risk here of underestimating just how little knowledge of benefits now resides in these places.
The (only) relevance is that its not incumbent on the claimant to estimate the level of knowledge of the professional with whom they deal. They ask a question of the only person with whom they deal and they are entitled to rely upon the answer in the absence of any information to the contrary. That’s the approach tribunals take almost without fail. The claimant doesn’t have to convince in this case at all. The burden of proof falls on the party seeking to change the decision and their evidence amounts to “we should have a record but we don’t so therefore it never happened”. This claimant already has a credible case to the contrary.
The fact that it was such a simple question is worrying, I can’t imagine that anyone involved with benefits doesn’t know about the need to disclose and (with all due respects to the claimant) I think there would have to be some fairly convincing evidence about the interview.
This may be my favourite quote of 2014.
“involved with benefits” and “personal advisers” are often mutually exclusive. Training is sufficiently inadequate to cover very little about benefit qualifying conditions and I very much doubt there would be any training re: disclosure. That chimes nicely with DWP/JC+ statements about being able to do better off calcs. When you dig beneath the surface they clearly don’t get training on HB/CTR and thus housing costs don’t even enter into it. There’s a risk here of underestimating just how little knowledge of benefits now resides in these places.
The (only) relevance is that its not incumbent on the claimant to estimate the level of knowledge of the professional with whom they deal. They ask a question of the only person with whom they deal and they are entitled to rely upon the answer in the absence of any information to the contrary. That’s the approach tribunals take almost without fail. The claimant doesn’t have to convince in this case at all. The burden of proof falls on the party seeking to change the decision and their evidence amounts to “we should have a record but we don’t so therefore it never happened”. This claimant already has a credible case to the contrary.
I’m glad you liked it! I entirely agree that the claimant is entitled to rely on the advice given by any DWP officer and for such simple question there is no excuse for their not knowing. Perhaps I am being naive but I can’t imagine any of our local DWP bods being so utterly useless!