Dealing with allegedly “overpaid” benefits to their clients is one of the trickiest problems that front-line social care staff face.
An overpayment may be due to a genuine error or misunderstanding
by the claimant. It could be because the
client thought that they might get away with not reporting a change
of circumstance. It might be down to desperation or even calculated
fraud.
And of course, the overpayment may be due to mistakes by benefit officials. Those should be the easiest to deal with – if the client hasn’t “misrepresented” or “failed to disclose” then you ought to be able to argue that such overpayments should be written off. That argument is harder with housing benefit and tax credit cases but not impossible.
But in all other cases, the task facing clients and advisers has just been made considerably more difficult.
This is as a result of the Court of Appeal judgment in B v Secretary of State for Work and Pensions, a test case taken by The Child Poverty Action Group (CPAG) against the tribunal of commissioners’ decision in CIS/4348/2003.
The tribunal of commissioners originally considered the issue of whether there is a requirement that a disclosure of a material fact must be “reasonably expected” for any overpayment to be recoverable.
They overturned previous commissioners’ decisions where it had been held that any disclosure must be reasonably expected.
Upholding the tribunal of commissioners decision, the Court of Appeal’s judgment means that the test of whether disclosure is “reasonably to be expected” no longer has any place in overpayment case-law.
So long as the Department for Work and Pensions has told the claimant that they should report information to it (and that is normally done on claim forms and subsequent letters), then the claimant will have “failed to disclose”, and created a recoverable overpayment, whatever the circumstances of the non-disclosure.
How will this work in practice?
Imagine a client who is getting income support because they are a lone parent. In the letter awarding benefit, it says “tell us of any change in your circumstances”. When her child becomes looked-after, she is immediately no longer entitled to income support.
But because of stress, or ill-health, or confusion about the different rules that relate to child benefit and income support, or because she thought the social worker would tell the DWP, the claimant doesn’t say anything to the DWP straightaway. She will now be automatically considered as having failed to disclose, regardless of those reasons.
Under the previous interpretation of the law, you might have been able to argue that, given the client’s situation (literacy skills, health and so on) immediate disclosure could not have reasonably been expected.
Leave to appeal on the test case is being sought to the House of Lords and a summary of CIS/4348/2003 is available from www.rightsnet.org.
Gary Vaux is head of money advice, Hertfordshire Council. He is unable to answer queries by post or telephone. If you have a question to be answered please write to him c/o Community Care.
