The RNIB Legal Rights Service has been successful in using a breach of the Equality Act 2010 to overturn the recovery of a benefit overpayment and we wanted to share some details in case this may be on interest.
The client was issued with an overpayment of Incapacity Benefit. The Secretary of State alleged the client had failed to disclose her occupational pension and that the overpayment was recoverable on this basis. The client appealed the overpayment decision and the initial First-tier Tribunal panel found that the overpayment was recoverable highlighting that ‘whilst it accepts the claimant is sight impaired, it would have been reasonable in the circumstances for her to ask for assistance to ensure that she was complying with the requirements of disclosure’. Following this decision the Secretary of State recovered the overpayment in full despite the client having further appeal rights.
At this time the client then approached the RNIB Legal Rights Service for assistance. We requested leave to appeal to the Upper Tribunal. We were successful and the Secretary of State also accepted that there was an error of law in the decision. The case was then remitted to a fresh First-tier Tribunal.
At this tribunal the Judge acknowledged that the Secretary of State was aware from 2011 that our client required large print. The Judge further accepted that the Secretary of State failed to make reasonable adjustments for our client by providing correspondence to her in an accessible format.
We argued that the Secretary of State could not rely on the duty to disclose because our client did not receive specific instructions on matters to be disclosed in a form which constitutes effective communication to her, as a visually impaired claimant. We further submitted that our client could not have reasonably been expected to know that receipt of an occupational pension would affect her entitlement to Incapacity Benefit, on the basis that information on her benefits was never provided to our client in an accessible format. We used Upper Tribunal decision CIS/1700/2011 as a basis of our case, please see attached.
The appeal was successful with the Judge finding that the overpayment was not recoverable. The Judge concluded that our client ‘has the right to be able to read that information herself if she can do by its provision in a larger type; it is wholly inappropriate for the Respondent to limit her independence by expecting her to rely on others to read documents for her’.
The Secretary of State has now repaid the monies previously recovered from our client.
We believe this decision demonstrates that breaches of equality legislation will be taken seriously in Social Security Tribunals and we will be using these arguments to challenge the unlawful recovery of benefit overpayments where inaccessible correspondence is a relevant factor.
[ Edited: 28 Sep 2015 at 03:41 pm by Claire Connolly ]
