Terms & Conditions

[Anonymous]

Would appreciate views on this –

If we receive notification (in June 2005) from JCP that JSA ends in June 2005, but don’t act on it until December 2005 due to backlog, and therefore an overpayment is raised, is any of this classed as LA error if the customer never notified us themselves?

Does the customer’s failure to inform us of the (reportable) change overide the delay in us acting on the change, making the whole overpayment claimant error and therefore recoverable?

Thanks

[Julian Hobson]

Definately LA error because whilst the claimant failed to report they didn’t materialy contribute to your failure to act. I suppose the presumption is that even had they told you, you would still have failed to act on the notification (not being critical when I say this).

However I would say that the OP is recoverable because the claimant could have known they were being overpaid (whether they actually knew is irrelevant). This is said with the caveat that I don’t know your claimant and you need to look at them to establish whether the test is met (in the same way as you might apply the “good cause” guidance).

Its also worth thinking about how you would have applied the “could have known” test if they had reported the change and you failed to act. In reporting the change they might reasonably expect a reassessment, and not getting one might alert them to the fact they might be being overpaid.

Should the fact that someone fails to report something they ought to have reported mean that they can escape the “could have known” test simply because you have less information on which to base your decision?

[Anonymous]

Most definitely LA error, and I agree with what Julian has written above, and would suggest that the O/P is recoverable… As Julian says, that decision will rest upon what the claimant could reasonably have been expected to know, and that will include the number/quality of letters etc. sent to the claimant/payee saying that HB/CTB was being paid on the basis of his JSA…

[Anonymous]

thanks for your replies, they back up what I was thinking…

No letters were sent out between the notification of the end of JSA being sent from JCP and our action on the claim, so I’m having to look at whether the change in income was significant enough for the customer to realise that her benefit entitlement would reduce, and that any payments she received were overpayments.

I think that in this particular case the overpayment is going to have to go down as non recoverable due to LA error. I have already had one verdict back from TAS stating that an overpayment raised due to backlog delays was official error and could not be recovered, and that was the one case I thought we might win, given the increase in income the change generated!

C’est la vie…

[Anonymous]

Deffo La error.

As for recoverability; what caused Jsa to end? did they get a job? or were they moved to some other benefit? Incap for instance.

Most people (not everyone, no blanket policies!) would know they had started work, but, not necessarily a change of benefit. Of course, if the change was to Incapacity Benefit, after u/e you would likely have a small o/p anyway.

It is not non-recoverable just because the La is at fault; could they, the customer, reasonably have known they were being overpaid?

[sue large]

I don’t want you all to shout at me………but….when I was at an appeal hearing last year, the district chair disagreed with me, that we had accepted an overpayment as being LA error as the claimant had contributed to the cause of the overpayment. He said that if the claimant has played any part in the cause of the overpayment, it should be claimant error and therefore no reasonable test needed to be applied.

In the circumstance you have mentioned we would class as claimant error as the claimant not notifying the change has contributed to the overpayment………….

[Anonymous]

Whilst I may be respectful to the chair of the hearing, I cannot understand how that decision could be reached logically. 🙄 😉

Were you arguing

* Up to the point of the LA finding out about the change of circs, it is definately claimant error.
* After that date (i.e. when the LA knew about the change), it is an overpayment caused by LA error, and may or may not be recoverable.
If so, I think your chair may have got it wrong (shock, horror) 😈 😉 8) [/list][/list]

[markp]

JUnderwood,

I’d still go with LA error but consider it recoverable (unless there was something else in your scenario of which I’m not aware of). The OP,in the main, was due to the delay in processing details you held. I suppose there [i:de51514b67]might[/i:de51514b67] be an element of claimant error, depending on when you received the details from DWP but certainly after receipt of info OP, in my (humble) opinion has to be LA error. Therefore a tribunal chair should not come up with the statement that Sue described. Perhaps what the outcome there should have been as Jon described.

Hope this helps.

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

[Anonymous]

I agree the Tribunal got it wrong in Sue’s case.

CH/4075/2003, CH/2324/2003, CH/1336/2004 and CH/4227/2004 all analyse the definition of official error and come to the same conclusion: there is a difference between the claimant bearing some moral or practical guilt in the matter on the one hand, and the claimant contributing to the actual error that caused the overpayment on the other. What happened here was that the Council made an administrative mistake in failing to attend to a piece of post. The claimant has no control over office procedures – she didn’t misfile the document or distract the officer or create a backlog. The error had absolutely nothing to do with her at all. From the point when the Council had enough information to halt further payments, it doesn’t matter whether that information should have come from the claimant but did not. The Council could just as easily have failed to process a notification from the claimant instead. What caused the overpayment was an internal council blunder, and that blunder was not influenced by the claimant.

[Andy Thurman]

I’m with Sue on this. 😉

The change was one that should have been reported. By not telling the LA (who, yes, have made an error in not dealing with the info from DWP) the claimant is contributing to the failure to act. Their contribution may be an inactive one, but, other than hacking into the LA’s network and crashing the processing system, I’m not sure what active contribution the clmt could make!! 🙂 Surely these circs are those covered by the ‘rider’ in 83(3)? If not, what would? 😕

Had the clmt notified of the change or not been required to do so, ‘nailed on’ LA error but the clmt was required to do so and didn’t! This has contributed to the LA’s failure to act.

So, in answer to the original question – yes, the claimant’s failure to notify does over-ride the LA’s omission (however glaring it may be).
The other scenario – delay due to backlog – is entirely different (this is LA error although I don’t agree with TAS re recovery).

[sue large]

in reply to Jon,

If I remember rightly clmt notified late change in income – we then didn’t act on info staright away due to backlog – I had agreed 1st part of OP clmt error then LA error from date info received

chair decided all OP should be clmt error as they has contributed to the cause by delaying to tell us the change.

In the situation above we do code all of the OP as clmt error – if they have not told told us about the change at all………..????

[seanosul]

[quote:848d2a9567]in reply to Jon,

If I remember rightly clmt notified late change in income – we then didn’t act on info staright away due to backlog – I had agreed 1st part of OP clmt error then LA error from date info received

chair decided all OP should be clmt error as they has contributed to the cause by delaying to tell us the change.

In the situation above we do code all of the OP as clmt error – if they have not told told us about the change at all………..????[/quote:848d2a9567]

As far as subsidy is concerned, the chair was ultra vires in deciding that unactioned post was Clt Error and not LA Error. If you as an authority know about a change, you must action it. The subsidy system is designed to penalise for this failure to act. Quite simply why should the DWP and the general taxpayer fund your backlog?

[sue large]

perhaps i didn’t make it totally clear…..we only code the OP clmt error where they have failed to notify us at all

[seanosul]

[quote:8701573987]perhaps i didn’t make it totally clear…..we only code the OP clmt error where they have failed to notify us at all[/quote:8701573987]

That sounds more likely to be fraud than claimant error in those circumstances. Clt error overpayments are to the point where the claimant notifies you of the change, from then (the exact point from when being the subject of many disputes between LAs and the DWP) the o/p becomes LA error.

The o/p in the circumstance above I would most definately say is recoverable though.

[Author]

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