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information required by Pension Service unavailable
My client has been asked to provide bank statements back to 22/08/2005. It follows on an investigation into an undeclared occupational pension. She was already in receipt of PC when her husband died in res care and when she received a small widows pension she did not know or was not advised (am not sure which) to tell the pension service about it. Ho hum, these things happen and the resulting overpayment over 7 years was just under £800.
Her bank have provided her with what is available, which is 6 years back. Where do we stand with being unable to provide 2005 - 2008? Her capital has gradually increased over the years but its clear from the statements available that in 2008 it was still below £10,000. It’s definitely crept over that subsequently but I don’t know if she’s been in an AIP for any of the period concerned. She was 75 when her single PC claim started so I’d have thought so. Is there some knind of balance of probabilities argument that can be made to her likely capital pre 2008 based on the info available?
Hmm, so failure to disclose a WP leads to an o/p based on the additional income but now they’re wanting to look at the impact of tariff income?
Bottom line is that unless they have any evidence of capital being >£10,000 their enquiries are going nowhere fast. And yes, it’s just a balance of probabilities argument. Client on fixed income. No evidence of pools, lottery wins, large expenditures or other capital that might have magically appeared. PS trying to speculate to accumulate. A tribunal would rip that to pieces.
Clarify what she knew about the WP; who helped with the original PC claim; what the care home may have said (including any social work staff); state of her health at point of his death (and subsequently) and, most importantly, were there any disclosures subsequent to the start of the o/p period (and what evidence do PS have that there were not).
On the facts you’ve presented, it looks a bit like a fishing expedition. If DWP can produce the evidence for capital in excess of £10,000, then your client can dispute it. If it can’t, which I suspect is the case if your client’s capital was under £10,000 in 2008 and hasn’t reduced, then you just have to say so and challenge any decision to take tariff income into account.
As with all civil cases, every fact only need be proved “on the balance of probability”. So, there is always a bit of wiggle room to show that something probably was/was not the case.
If the overpayment is going down the route of failure to disclose, did she know about the income, could she reasonably have been expected to know, can the department prove that she was told to disclose etc. There’s a lot in the Sweet & Maxwell commentary on this subject if you’ve access to it.
If there was no failure to disclose and no misrepresentation, the overpayment’s not recoverable.
..Where do we stand with being unable to provide 2005 - 2008? ...Is there some knind of balance of probabilities argument that can be made to her likely capital pre 2008 based on the info available?
Important to understand the difference between the standard and burden of proof. This case could be decided on the latter. It’s possible that neither party will be able to show that their evidence/case is more probably true than not. In which case, the tribunal could reasonably conclude that it just doesn’t know who is right.
Lets say the probability of the claimant’s account being right is 45% and the DWP’s is 20%, where 100% is the truth. It’s not a case of comparing the 45% to the 20% and concluding that the claimant must win because she has the better score. The 45% and 20% are not part of the same 100%, otherwise there’d be 35% remaining which would be unaccounted for (ie 100 - 45 - 20 = 35). Each party’s evidence is assessed on its own scale of 100%. Eg, the DWP are 20% likely to be true and 80% likely to be untrue. The standard of proof is the balance of probabilities, ie 50% or as probable as not. An objective standard of probability, eg based upon common sense. If my case has a 51% chance of being true then it must have a 49% chance of being untrue when assessed against that objective standard. Consequently, it would be more probable than not.
Here, as stated above, neither party may reach 51%. In those circs, it’s the burden of proof that decides the winner. The party that carries the legal burden of proof is the one who loses where neither party’s case is more probable than not. The HL in Kerr decided that for most social security cases the burden of proof (it couldn’t even bring itself to call it the burden of proof; instead opting for “burden of collective ignorance”) wouldn’t need to be considered that often because it should be possible to decide which party’s case is more probably true than not using a co-operative process of investigation where each party has to play its part. Should one party not do all it reasonably could to evidence its case then that party would lose. In the above example even if the claimant probably didn’t have more than 10k in 2005, she’d arguably lose if she made no efforts to show just that, eg not produce any of the bank statements for the later years that are available.
However, the HL recognised that there may be cases where each party does all that could be reasonably expected of it and still the truth is no nearer being known (ie collective ignorance). In other words, neither party reaches the 51% standard. In that event, the court has to decide who has the burden of proof. The test it concluded was whether the ignorance related to a condition of entitlement to benefit or to an exception to a condition of entitlement. So for PC the conditions of entitlement are set out in section 2 of the Pensions Credit Act 2002. One of those conditions (for PCGC) is that the person does not have income above the appropriate minimum income guarantee. Kerr held, in effect, that claimants would carry the burden where the ignorance related to a condition of entitlement (eg where the provision reads “shall be entitled if”) and the DWP where it related to an exception (eg “shall not be entitled if”). In the present case, the claimant might find herself carrying the burden were she making a new claim. However, she has already been awarded it and so the DWP are trying to supersede or revise an existing award. In other words, they are saying “she is not entitled because”. Hence, the burden is arguably on them.
Probably academic as a tribunal is likely to find that her combined oral evidence and later years’ bank statements score at least 51% so the burden will not have to be resorted to.
[ Edited: 12 Mar 2015 at 12:32 pm by Tom H ]Thanks all. No time to digest in detail at the moment but appreciate all your contributions. will see what the Pension Service come back with, they’ve had all we’ve got so the ball is curently in their court.