Admitted non-disclosure but DWP have lost the papers?

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    Scenario: customer on IS/JSA admits she has £77,000 in the bank that she has never declared. Interviewed under caution and makes full statement etc.

    Referred to DWP who stop payment but advise that they will not be revising previous award because case paper lost (oh joy). Representative has now appealled against HB overpayment.

    Technically, the capital of a passported claimant is ignored for HB purposes. I remember case-law which allowed LA to proceed if it was clear DWP had not been given all the facts (cant remember the name of the case) BUT only until DWP have made a final decision. Which here they have – no action.

    Investigations manager not thrilled (!) with the idea of just abandoning recovery (and prosecution) but I am struggling to see on what basis we can proceed. Technically, she was paid IS for the period of the HB and thus the capital is disregarded.

    Any ideas?


    This is precisely the situation in which LAs can rely on the Hamilton & South Ribble case. In his appeal, Mr Hamilton tried to invoke the earlier Menear & Penwith decision, where the court observed that the income and capital of a claimant on IS must be disregarded. Mr Hamilton was on IS during a past period for which the Council had susoicions about his income – he argued that the fact he was on IS prevented the Council from poking its nose into his income and capital. But his case was different from Menear: in Menear, the DWP was aware of the issue and was happy with its award of IS; whereas in Hamilton the events happened so long ago that it was no longer possible for the DWP to investigate.

    Judge Scott-Baker said: “where, as here, entitlement to housing benefit is dependent on receipt of income support, that income support must have been lawfully obtained; that is, lawfully in the sense of neither by fraud, nor dishonestly”. Normally it would be for the DWP to decide whether the IS award is legit, but where the DWP papers for the relevant period are no longer available the Hamilton case provides a way for the Council to take its own view.


    I think Peter’s case is slightly different from Hamilton in that in Hamilton the DWP had not had an opportunity to consider the facts of the case and make a decision on the I/S entitlement.

    I think you could still rely on it though:

    Justice Baker: ‘(Menear) is no authority for the proposition that a fraudulently obtained entitlement to income support carries with it an entitlement to housing benefit’

    If customer has admitted fraudulently concealing the funds, I doubt he can rely on Menear. But if he admitted it, why is he now appealing? If I was him I would now argue that the funds were declared to the DWP. They are now not in a position to disprove this, and he may be able to rely on Menear or at least put forward the argument that any resulting HB/CTB overpayment should be deemed DWP error.

    Kevin D

    I too would rely on Hamilton (para 27):

    In respect of a possible argument that the DWP has made a “final” decision, I’d argue that the DWP haven’t made any decision at all. All the DWP are saying is “thanks for bringing this to our attention, but we’re not [u:a44038e5d8]yet[/u:a44038e5d8] able to investigate because we can’t locate the papers”.

    Even if a Tribunal found for the clmt, I’d be astonished if a Commissioner upheld it (based on the info given). Um, on second thoughts, this is benefits. So, “astonished” should, perhaps, be replaced with “mildly surprised”….. 😉


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