Adverse Inference

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  • #22112
    Anonymous
    Guest

    If bank statements are not provided after appropriate timescales, are we within our rights to do an adverse inference and assume capital is > £16,000, thus ending the claim; or is this likely to be challenged if it went to appeal? Is it safer (in the absence of any proof to the contrary), to assume a level between £6-16,000?

    #6749
    markp
    Participant

    You would be within your rights to assume a capital value of < £16,000.00 and to notify of that adverse inference. Your claimant would have the right of appeal and must provide the evidence of their savings if they do so. If an appeal is made within the month, as I would expect with this kind of decision, then you would have to revise the decision to reflect the actual capital held by the claimant. If the appeal is late you wouldn’t necessarily have to accept it as duly made and let an independent appeal tribunal rule on (a) whether it is duly made or not and (b) whether the decision should be revised (assuming they accept the appeal which in my experience they invariably do). You would of course be able to make a superseding decision from the date such capital details are supplied, as long as a new claim has been made since you would be following a period of nil entitlement.

    Hope this helps.

    Do I know what I'm doing? The jury's out on that........................

    #6750
    Anonymous
    Guest

    Thanks Mark, that’s very helpful

    Regards

    #6751
    ralph
    Participant

    On the subject of adverse inferences – can anyone currently processing claims with assumed amounts in tell me if these are getting picked up by HBMS and causing data matches?

    #6752
    Milly
    Participant

    At my authority we aren’t allowed to use assumed income/capital. we have to make a claim ineligible on the system and then issue an advserse inference letter. If the customer provides the info we re-open the claim, but were told under no circumstance were we to use assumed figures as this contravenes Data Protection!

    #6753
    ralph
    Participant

    Milly

    We’ve been doing something similar for a couple of years now – not processing the claim on the system but issuing a DNQ letter with appeal rights.

    We are now considering processing them on the system as the adverse inference is a decision on a claim, which is not currently being recorded in Stats 124.

    My thinking is that it should be included in Line 2b – New claims decided unsuccessful without all info.

    As such we need to put the claim on the system. What I want to ensure before we do so is that its not going to cause any unforseen problems.

    Though I’m not sure how this consitutes a breach of Data Protection…

    #6754
    Milly
    Participant

    The DPA thing was that we were holding information that was technically incorrect and that had not been supplied by the customer.

    We have 2 different types of ‘ineffective’ claim. those that are Defective for which we have a calculation that we do to show that no info was provided at all and the adverse inference where not enough has been provided, but in that instance the claim is left on the system and marked as ineligible – thankfully i don’t have to consider the stats side of things!!

    #6755
    simonh
    Participant

    As an Academy site we have the facility to issue a ‘Do Not Qualify’ decision without having to enter details for income etc. A letter is produced saying ‘you do not qualify because you have capital in excess of £16,000’, or ‘you are not liable for the rent’ etc. In this way we avoid any HBMS matches. At this point there is also an indicator to show if all information was provided which ensures that it shows in the correct area of the 124.

    #6756
    jmembery
    Participant

    Is adverse inference such a big issue with new claims now?

    Most claim forms specify the evidence needed to support the claim. If that evidence is not provided then the claim is defective. You don’t need to use adverse inference at all. The decision that the claim is defective is still open to appeal.

    I.E Claim form specifies that bank statements covering 2 months of transactions are needed. Claimant does not supply these with the form, the LA sends letter asking for them (and perhaps later a reminder). The bank statements are not sent in by claimant within time limits. Claim is decided as “defective” and appeal rights given. No need for adverse inference.

    Adverse inference only really comes into play when evidence not specifically requested on the form is requested, or when evidence is requested when there is no new claim. I.E when claimant stops getting IS/JSA and the LA asks for evidence of income.

    #6757
    simonh
    Participant

    The problem being (with Academy anyway) there is no way of indicating that a claim has been decided as defective. You can only indicate that all the information was available or not.

    #6758
    Julian Hobson
    Participant

    I just want to pick up on the Data protection issue. The idea that holding an assumed income figure having drawn an adverse inference contravenes DP is in my opinion wrong.

    The point here is that you have [b:9e25885218]decided[/b:9e25885218] that there income is X and that,that decision is therefore correct, until proven otherwise.

    Interestingly, If you do anything other than that ie draw an adverse inference and issue a DNQ letter without recording the income used in that assessment then you might contravene DP because your records are not accurate (and knowingly so).

    Is it possible here that DP is being used to defend a preferred position ?

    #6759
    andyrichards
    Participant

    Well imho this whole Data Protection argument is summat and nowt.

    I am no great expert on the DPA but I have done some rudimentary training on it. The thing about the “data” we process is that it should be seen in the context of what our legal functions are. We don’t collect and hold information on people for the sake of it, we do it in pursuance of our function of deciding claims for benefit. This involves us making assumptions and inferences in some circumstances.

    When you do not put any non-dep income on a claim on SX3 it takes the highest deduction (as you would expect). The information that the non-dep has no income is no more “accurate” than the information that their income is £338.01 pw (or whatever), but we still do it. Similarly, if this DP argument had legs, we could never assess a student loan as income of a student who had not applied for one; nor apply notional earnings. Surely the important thing is that it is clearly recorded when we are making assumptions and inferences.

    BTW, one of the DP principles is that all data should be “up to date”. Where does that leave all those dormant claims and old applications we hang on to for years??

    #6760
    Anonymous
    Guest

    There are issues here that impact on DPA that need to be considered.

    If I get a claim with no evidence of bank account balances and the claimant does not respond to requests for this information it is reasonable that I make an adverse inference that the claimant has over 16k, so there is no entitlement. No problems there. what is recorded is that the claimant failed to respond so I made an adverse inference decision and shut the case.

    Where DPA problems would come in is if I decided that the claimant had say £17,000.00 and I recorded that information to close the case. If I did I would have intentionally put in information that I have no reason to believe is true and so I would be breaching DPA priciples by making up information.

    In some cases we can assume a figure, for example somebody gats a 30k compensation payment which they say they have spent and no longer have. If they don’t prove details in these cases it’s reasonable for me to assume the 30k exists and record it as such. But here I would have a basis for the amount, rather than it being a random number plucked out of the air, so I could show that on the balance of evidence it is reasonable for me to beleive the 30k exists and that this is therefore correct information under the DPA.

    Most cases will, however, be a negative inference that by not providing evidence capital exceeds 16k, but with no amount actually stated or recorded, just the adverse decision.

    #6761
    Kevin D
    Participant

    In cases where LAs choose to go the extra step and make an adverse inference, there is a solution that should satisfy the DPA.

    Create system codes for income & capital that can be input – e.g. “capital (adverse inference)” / “income (adverse inference)”.

    That way, the income / capital being held on the system will be correct as it has a proper legal basis AND is correctly described. Can’t see the Information Commissioner having a problem with that given the existence of a legal basis for it.

    As has already been pointed out, there is normally no need to make an adverse inference on a new claim – it will be enough to make a decision on the grounds that evidence / info hasn’t been provided.

    Regards

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