Terms & Conditions

[Anonymous]

A frequent topic on the boards this one, but I’m 50/50 and so I thought I’d ask the audience!

Overpayment created Nov ’06 after an investigation.

Mr X claims Income Support during 1998/99, HB application for an LA property fails to mention he owned another property. O/P appeal states that his sister, her partner and 4 children stayed there rent-free (born out by the fact that we have claims for the sister for Council Tax only during this period).

The DWP are not interested in the I/S element due to the age and inability to locate case papers going back that far, so decision taken by the LA to raise HB and CTB overpayments on the basis of capital exceeding £16K. (NB no details of a valuation as at 1998)

I know we can go behind the I/S decision where we believe it’s been paid unlawfully, but do you think that

a) The decision to raise an o/p was corect, and
b) What are the prospects of getting TTS to uphold decision (debtor has solicitors on board so am presuming will want to go that far).

Thanks in advance.

[Nicky]

John

a) yes
b) you should be fine on the evidence you’ve got and I would presume that DWP have stopped IS ongoing at least?

[Stalbansbenefits]

If the claimant is clever enough to argue that he declared the property to the DWP and they awarded him Income Support regardless, I imagine the would have a very high chance of success at Appeal.

[Anonymous]

Thanks for the replies.

Nicky, DWP stopped I/S a long time ago which possibly explains lack of interest on their part.

Stalbansbenefits, I agree, hence my reluctance to proceed all guns blazing so to speak. Think a chat with an Appeals Officer beckons…

Thanks again.

[markp]

HB Schedule 6 para 4 (a) (HB Regs quoted) should apply here. The property can only be disregarded if occupied by a a relative who is (i) aged 60+ or (ii) incapacitated. You don’t state that the claimant’s sister satisfies either category so I assume she doesn’t. I also believe, but am not 100% sure, that IS Regs are meaner on capital issues than HB/CTB Regs are.

As long as the above applies then I too, like Nicky, think you should go to tribunal and, if need be, the Commissioners.

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

[Anonymous]

Mark p

You’re right in your assumptions re the sister, working age with children.

I was trying to determine if the property might fall to be disregarded for I/S. If, as you say, their regs are meaner than HB/CTB then that looks a remote possibility.

Thanks

[Stalbansbenefits]

But if I was representing the claimant, I’d argue that paragraph 5 of schedule 6 applies.

LA would then have to rely on Hamilton and submit that the Income Support award was obtained by fraud. I’d say that could be difficult to do in this case without the DWP case papers. He could have declared the property and the DWP could have assessed the equity at that time as being less than £8000. Or they could have (perhaps incorrectly) determined the property fell to be disregarded.

Furthermore, in Hamilton the DWP had not been given the opportunity to look at the evidence the Local Authority held regarding the claimant’s income. It was held that, held they done so, they would have almost certainly withdrawn Income Support. This does not apply in this case – the DWP have considered the information. Therefore, you could certainly make an argument that Menear applies rather than Hamilton.

[Kevin D]

Deliberately playing devil’s advocate to St Albans, I’d try this line….

The destruction / lack of DWP papers is not, in itself, determinative. The LA suggests that, based on the level of capital involved [assuming a current valuation has been done!], it is highly improbable that the value would have been less than £8,000 / £16,000 at all relevant times. Therefore, on the balance of probability, the LA believes it is entirely reasonable to conclude that the clmt was not in fact lawfully entitled to Income Support. In turn, the LA is entitled to rely on [b:0f2fc33e94]Hamilton[/b:0f2fc33e94].

The destruction of documents was looked at in [b:0f2fc33e94]CH/3083/2005[/b:0f2fc33e94].

I’m not suggesting this line is a “knock-out” blow to the clmt’s potential argument, but the clmt’s position is far from unassailable. At least in my view. Such a line of argument also at least puts the Tribunal in a position of having to decide if:

1) the property was in fact disclosed to the DWP (clmt credibility issues?) – the LA notes that such disclosure was not made to the LA.

2) the property, if disclosed, was properly disregarded?

3) there was an error by the DWP in the assessment of IS.

Er, have fun….. :).

[Anonymous]

Thanks for the further replies.

My own feeling is that the lack of evidence from DWP undermines our case. My appeals officer advises that chairs here are quite customer friendly and it then becomes a question of the claimant’s credibility, there are no previous (or indeed subsequent) claims to point to his knowledge of the HB system and he’s adamant the he advised “the Benefits section” (which we believe is the DWP) of the property.

I’m shortly to give the pros and cons of proceeding with the case to a senior officer for the final say, thanks to all for your contributions.

Regards.

[Author]

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