Claim form and evidence to accompany

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  • #31772
    ben steventon
    Participant

    Hi All,

    I have an o/p case waiting to either be written off (subject to what joy I get with this topic) or taken to Tribunal.

    Scenario:
    Claim form completed by a VF officer in 2007.
    Claimant confirms on application one private pension.
    Provides all other proofs necessary.
    Claim put into payment based on above.

    Review claim completed October 2009. This uncovers a previously ‘undeclared’ 2nd pension. O/P £600+ as a result. I say undeclared as the argument is now that claimant provided a building society statement in 2007 where this 2nd pension was paid, BUT it was not declared on the claim form.

    Problem is, we don’t have the BS statement as it was just verified by VF for capital reasons and noted as capital. Claimant has now provided a BS statement but the a/c number is different to what was originally supplied in 2007, so we can’t tally the 2 together.

    I can’t see anything in reg 64 , or anywhere else for that matter that states the basis of the claim is solely the claim form, but this is the argument used in the SOR issued by one of our staff.

    Can I get some views/opinions on this please? I have never had such a case got to Tribunal and I wonder is there anything that would help either us or the claimant to resolve this. I currently feel it’s 6 of 1 and half a dozen of the other!

    #41796
    Anonymous
    Guest

    Even if you accept that your VO saw the bank statement, there is still a false statement on the claim form. Unless the VO was negligent in completing the claim form the claimant would have materially contributed to the error so the O/P would be recoverable. I think it would be worth a shot at tribunal but the judge might want details of your home visit procedure.

    #88875
    John Boxall
    Participant

    Funnily enough I have been looking at a similar case today – so I’m not gping to pretend I have the kind of all encompassing grasp of CD’s that Kevin D or Stainsby to name but a few have

    But try CH3925/2006 and more importantly CH/0069/2003

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield

    #88876
    Kevin D
    Participant

    [compiled before seeing other posts]

    Based on the info given, the o/p appears to be recoverable.

    There is plenty of case law confirming that a claimant is responsible for the content of a form signed by him/her, even where it is completed by a third party.

    So, is the “failure” to look in detail at the BS statement an error? It depends. If the only purpose of looking at the statement was to verify capital, it is arguable there was no error in missing income details. Of course, if it was LA procedure to look for such things, that would probably mean an error has occurred. On the other hand, what was the level of detail on the BS statement? If it was not identifiable as a source of income, it would be strongly arguable the LA was not at fault in any case (see the distinction between [b:3afed109d7]CH/0069/2003[/b:3afed109d7] & [b:3afed109d7]CH/0603/2004[/b:3afed109d7]). I’d probably argue:

    1) the o/p is recoverable because it was not caused by an error on the part of the Council – it was caused by the claimant’s failure to disclose the pension on the review form (it can’t legally be a “claim” form); or alternatively,

    2) if the Council’s failure to note the transaction on the BS statement is considered to be the cause of the o/p, the overpayment is still recoverable on the grounds that:

    a) the claimant contributed to the cause of the o/p by failing to disclose the pension on the review form; or

    b) the claimant could reasonably have been expected to realise at the time of notices sent to him/her that s/he was being overpaid (if you still use IBS/Civica, the letters *should* have listed each type of income, including different pensions, individually).

    There you go, half your sub done :). Now I’m exhausted…. 😯

    #88877
    peterdelamothe
    Keymaster

    I have recently written a few responses on this type of case. You just need to argue in the alternative i.e. there is no “official error” (for the reasons already given) when the overpayment is recoverable or if the tribunal does not accept that, the overpayment is still recoverable because the claimant must have reasonably realised he/she was being overpaid. Provided your decision letters are clear and contain a breakdown then this is a tough test for the claimant to meet:

    In CH/2713/2006 the basic test is set out plainly:

    “The standard required by the legislation is high. Regardless of whether or not there was official error, which plainly there was here, there is an obligation on the claimant to repay any overpayment unless the claimant could not reasonably have been expected to realise that it was an overpayment. It is not necessary for the claimant to have been at fault ….payments of Housing Benefit and Council Tax Benefit are from the public purse and the legislation reflects the need to ensure that so far as possible when overpayments are made, they are recoverable”.

    Similarly in CH/0866/2006

    “I am conscious that the claimant has had her difficulties and I appreciate that this is a strict approach but it is the approach required by the legislation and it is important to remember that no penalty is being imposed on the claimant; she is merely being required to repay a considerable sum that she should never have had”.

    #41800
    ben steventon
    Participant

    Thanks to all for the replies… Kevin D; I feel some of your text may well be included in my submission!

    I am agasp as to how you manage to quote commissioners decisions etc that you all seem to know, or do you have some wonderful reference media that I need to be make myself aware of?

    #88878
    Kevin D
    Participant

    [quote:d8091227c0=”ben steventon”]I am agasp as to how you manage to quote commissioners decisions etc that you all seem to know, or do you have some wonderful reference media that I need to be make myself aware of?[/quote:d8091227c0]

    Semi-serious response… In short, it’s a combination of knowledge and experience (good and bad). Also, the sheer depth of debate and legal argument on this (and another) forum helps – as does the regular reference by a number of posters to legal authorities. Although I can sometimes appear quite abrasive on the forums, I am rather humbly indebted to several posters who have been directly responsible for me NOW being able to provide some of the citations and arguments used within my own posts.

    In answer to the question about “wonderful reference media”, some LAs have databases of legal authorities, as do some individual forum posters (both to varying degrees of completeness and/or complexity). Also, the search facility on HBinfo is improving (and will be refined further in future) and in the not too distant future a number of HB/CTB CDs/UTDs that are “missing” will be added. Part of the trick is to learn how to search. The rest is just sheer hard work trying to stay on top of all the new decisions as they are released. Those individuals that maintain databases, or similar, won’t generally make those readily available. Two main reasons: the amount of (unpaid) work involved and, loosely related even if somewhat paradoxically, their potential value as commercial commodities.

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