101 (2) (b) misrepresentation & Failure to disclose

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  • #45030
    Amanda JB
    Participant

    Can anyone please advise if I have got this right before i prepare it for tribunal

     

    Council tenancy

    We have a large O/P, DWP have nilled their I/S decision from April 2002 (should be much earlier but due to lack of documents chose this date)

    The I/S claimant was our partner, she did not declare her P/P to DWP

    This resulted in us also creating a large O/P from April 2002 which we notified as recoverable from both our claimant and his partner in accordance with 101 (2) (b) as they both misrepresented facts and failed to disclose.  We have applied U/E correctly

    They have now split up and he has appealed with the assisatance of Community Legal Advice, he argues it should not be reocverable from him as it as his ex's misrepresentation to DWP which caused the O/P.

    Our first claim forms back in 1992 are no longer available but all the review forms we have since 2000 were signed by him (some by her also) and although on I/S he still listed all the other income eg ICB DLA CA CTC CB but did not declare the P/P, he  does not say that he didnt know about the P/P.

    Can anyone think of any pitfalls I may encounter?

    #126970
    Amanda JB
    Participant

    Update

    The partner who claimed the I/S has since made statements accepting full responsibility stating she did not tell her husband about her P/P, i suspect she has done this to get him off the hook as she has mental health issues and we are unlikley to prosecute her.

    I dont think any of this matters though?

    #127019
    d-stainsby
    Participant

    Who was the HB claimant?

    Looking at Reg 101(2)(b) the overpayment has to be in consequence oof a misrepresentation “by or on behalf of the claimant” or by or on behalf of the person to whom the overpayment was made”

    I know that LA’s sometimes require a signature from a partner on forms but that is of little consequence. I cannot see how that could amount to a misrepresentation on behalf of the claimant. The application form is the responsibility of the claimant.

    I think that in the present case the overpayment is recoverable from the person who clasimed HB

    #127025
    Amanda JB
    Participant

    Mr is the HB claimant
    Mrs is the I/S claimant, it is her who did not declare her P/P to DWP for the I/S claim

    #127038
    d-stainsby
    Participant

    Unless you have enough evidence to suggest misrepresentation by behaviour (his silence), then I would say the o/p is only recoverable from the one who obtained IS by misrepresentation (ie the ex partner)

    #127041
    Amanda JB
    Participant

    Does RH 03 09 para 77 not hold any weight?

    #127045
    Amanda JB
    Participant

    I have just been advised by the investigator that whan Mrs gave a prepared statement saying she took full responsibility and that her husband did not know about the P/P, she asked for a copy of the tapes so she could replay them to him. When asked if this was because she was afraid of him she shook her head but her eyes filled with tears and her friend them comforted her. The investigator was of the opinion she made the statement to cover for him and get him off the hook.

    I really want to keep him as a recovery target, is there anymore opinions?

    #127046
    d-stainsby
    Participant

    Mr Commissioner Jacobs held at para 77 of R(H)3/09

    “The claimant told me that he did not know of the money in his wife’s accounts and that she had forgotten about them. Those matters do not affect his liability. The information he provided to the local authority was inaccurate and incomplete. It does not matter that he was not aware of his wife’s finances. ”

    The present case distinguishes R(H)3/09 because the partner was in receipt of IS. All income and capital must be disregarded when there is a passporting benefit in payment

    There seems no evidence that the HB claimant obtained the partners IS by misrepresentatiion, thus making the HB/CTB receoverable from the person who did acquire IS that way

    #127048
    Amanda JB
    Participant

    Thank you for your advice, however per CTB only Mr was named on the bill as Mrs is SMI so her name not on the bill, so per CTB 85, I presume CTB O/P is only recoverable from him?

    #127049
    Anonymous
    Guest

    In CSH/566/2007, the Commissioner looked at what exactly was the material fact of which the Council had been ignorant when it made its awarding decisions in a case where the claimant was on IS and had excess capital. He decided that it was a material fact that the claimant (a) was getting IS and (b) should not have been. The Council was ignorant of the inappropriateness of the IS award, and that was the immediate ground for revising the HB decisions.

    In HB Reg 101, the only reference to misrepresentation and failure to disclose involves the claimant, the HB recipient and anyone else “on their behalf”. The problem here is that the partner’s misrepresentation/failure to disclose in respect of her IS claim was not on behalf of the HB claimant. For the purpose of Reg 101, it is the HB claimant who has innocently misrepresented the facts by saying that his wife was on IS, which implies that she was properly entitled to IS, when the true facts were that she was not properly entitled to IS. This makes the o/p recoverable from the HB claimant. That is more consistent with R( H ) 3/09

    #127050
    d-stainsby
    Participant

    Its grounds for revising the decision, but not enough to show misrepresentation because the partner is entitled to IS until a decision is made otherwise. There appears be no misrepresentation by the HB claimant ( re the IS award) in the present case.

    #127052
    Amanda JB
    Participant

    Peter I have e-mailed you for a copy of CSH/566/2007 if you would be kind enough to provide

    #127054
    nick dearnley
    Participant

    I think you need to carefully consider reg 101(2). Subpara (c) doesn’t apply as there was no offical error.

    Only subpara (a) allows the overpayment to be recoverable from more than one person – the clmt as well as the person receiving payments if they are different. This is what gives rise to the R(H)6/06 issues; but I don’t think that applies to your case. Your clmt and payee are one and the same, so (a) doesn’t help.

    Subpara (b) applies where there is a misrepresentation or failure to disclose. Only the clmt can be under a duty to disclose, so the partner cannot become a target by failing to disclose her income – she is under no duty to do so. And (b) only operates where the misrep or failure is *by or on behalf of the clmt* or *by or on behalf of the person receiving payment*. If it is one of those, it is *only* recoverable from that person. So I think that (b) doesn’t allow you to recover from the partner because she is not the clmt or person receiving payment and has not done anything on their behalf. If I were an adviser I would argue that the failure to disclose for IS purposes doesn’t bring her within (b) because it is not a failure to disclose on an HB claim – she is not the HB clmt.

    I think that the hard part of your argument will be convincing a judge that the ptnr comes within 101(2) and that she overtakes the clmt as the target. I might be wrong, but I think you’re stuck with the clmt as the only target.

    #127055
    nick dearnley
    Participant

    Peter beat me to it… Must type faster!

    #127056
    d-stainsby
    Participant

    The HB claimant was part of the partners applicable amount for IS and whilst it may be stretching a point, its arguable that she therefore claimed IS “on behalf of” both of them.

    Following Sier, the common sense analysis is that the original misrepresentation of the IS claim is the cause of the HB overpayment. In other words the HB overpayment was “in consenqence” of a misrepresentation on behalf of the HB claimant in acquiring the IS.

    It does not matter where in the chain of events the misrepresentation took place provided the chain of causation is unbroken

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