Claimant error?

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  • #22217
    Anonymous
    Guest

    It’s good this, bear with me.

    A claimant recently advised us that she has started work on 010505. Wage slips were provided and a massive CTB overpayment raised. The overpayment was classified as claimant error as we did not receive any notification of this change until now.

    However, the claimant states she did tell the the Council at the time. So, with a little digging I find a note on the CTax records stating the they received a letter in July ’05 from the claimant stating that she had started work.

    So the LA was informed. The HB service wasn’t, but the (outsourced) CTax contractor was. My query is, shouldn’t the overpayment be LA error from the date that the CTax contractor received the claimant’s letter in July? I recall a trainer, in the dim and distant past, telling me there was case law on the matter and, strictly, a claimant could notify a change of circs to the dustman (in writing, of course) and he has notified the LA.

    Or am I missing something really basic and embarassing?

    Cheers y’all,

    Darren

    #7160
    Anonymous
    Guest

    Darren
    I’m sure others will have the numbers of the relevant CDs, but this sis referred to in CPAGs Welfare Benefits and Tax Credits handbook, page 1084 (06/07 edition)
    Hope this helps 8)

    #7161
    Anonymous
    Guest

    I’m just putting this back up the board as I am hoping for some further help from you guys!

    Cheers,

    Darren

    #7162
    Anonymous
    Guest

    I’m just putting this back up the board as I am hoping for some further help from you guys!

    Cheers,

    Darren

    #7163
    Anonymous
    Guest

    A recent decision of Mr Commissioner Howell CIS/1887/2002 should provide the answer, and that is the overpayment is LA error.

    This is because the duty is to disclose to the office (not the section of the office) dealing with the claim

    #7164
    Anonymous
    Guest

    Thanks for that Stainsby, but how does this match HB06 reg 88(1) which states that a change of circs must be declared to a designated office? The contractor’s premises are not, in themselves, “designated”.

    And I can’t find out where the original letter from the claimant was itself received! Oh poo!

    Darren

    #7165
    Andy Thurman
    Keymaster

    Definitely LA error! 8)

    As you can’t establish where the original letter was sent, I would assume that it was addressed simply to the council. How the LA then processed it is not the clmt’s fault.

    Whether Ctax is administered by the LA or a contractor, they are “the council” to the taxpayer/claimant and anyone working in Ctax should understand the significance of a letter from someone on CTB stating they had started work. There should also be a procedure for ensuring documents are passed to Benefits (usually straightforward these days with DIP systems).

    Curious though – why are you so keen to re-classify? I think you probably should – now the evidence has come to light I expect an auditor would say so 🙄 but is this going to help the claimant? Unfortunately for her, I think it is difficult for her to claim she didn’t know she was being overpaid.

    #7166
    Anonymous
    Guest

    The duty to disclsoe is not an unqualified one. It may be modified by the actions of the LA’s own officials, or those carrying out functions on the LA’s behalf.

    Mr Commissioner Rowland allowed an appeal in CA/2298/2005 from someone who had not disclosed to the DLA unit that the claimants care home fees had started being paid by the local authority. He wrote at para 13:

    “13. However, what she argues is that the ordinary duty to disclose was modified in this case by the Customer Liaison Manager This submission needs further analysis. A representation by an officer that there is no need to make further disclosure may have an impact on the duty to disclose imposed by regulation 32(1), (1A) and (1B) in a number of ways. Where regulation 32(1) or (1A) is concerned, the claimant might understand the representation as a modification of written instructions to furnish information because, perhaps, he or she might understand that the information would not be relevant to entitlement to benefit in the particular circumstances of the claimant’s case.

    There is no reason why an officer acting on behalf of the Secretary of State may not modify written instructions because there is nothing in regulation 32(1) or (1A) to suggest that the requirement to furnish information or evidence need itself be in writing. Where regulation 32(1B) is concerned, the claimant might again understand the representation as meaning that the change of circumstances that he or she would otherwise have disclosed would not in fact have any effect on his or her entitlement to benefit so that, after the representation has been made, the change would no longer be one the claimant “might reasonably be expected to know might affect” entitlement to, or payment of, benefit. Alternatively, the claimant might understand that information disclosed to the officer making the representation would be passed on to the relevant office where disclosure should ordinarily be made. That is a modification of the general rule as to where disclosure is to be made. Such a modification was accepted in paragraph 28 of R(SB) 15/87 and was not excepted from the general approval of that decision by the House of Lords in Hinchy. In such a case, it was held in R(SB) 15/87, a further duty to disclose would arise if it became apparent to the claimant that the information had not been passed on because an anticipated reduction in his or her entitlement to benefit had not occurred. If the claimant did not know whether or not the information would result in a reduction in benefit, that further duty might not arise.”

    Regardless of whether the contractors ofice is a designated office, the circumstances of the case to me point to the overpayments being LA error

    #7167
    Anonymous
    Guest

    Andy,

    I’m querying it ‘cos I’m checking the assessment. I’m not so sure about whether it was reasonable for her to be aware she was being overpaid. If she thinks she has advised us…… well, let’s just say that stranger things have been allowed by tribunal chairs.

    Stainsby,

    Thanks very much for the references. All I need to do is get my boss to agree that the decisiond are persuasive.

    Cheers,

    Darren

    #7168
    Anonymous
    Guest

    LA’s often refer to the legal test as “reasonably expected to be aware” of an overpayment when the legal test is “reasonably be expected to realise” (at the relevant time.)

    “To realise” means “to be fully aware” or” to fully understand”. That is far stronger than simply to be aware. What is more the realisation is not that there might be overpayments, but that there definitely were at least some elements that were overpayments.

    In the context of CTB, the understanding must have been at the time that CTB was actually paid, or credited to the CTAX account or if the CTB notices were sufficently contemporaneous, at the time they were issued . (see R(H)1/02 and CH/1780/2005)

    You will need to look at when the CTB was credited to the account, when the decision notices were issued, and what information the claimant had at the time, and then make a realistic assessment of what the claimant could reasonably be expected to fully understand

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