Partner as target for recovery

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    Neil Adamson

    Hands up, been reading previous submissions regarding the above and have got myself a little confused. I will certainly be recommending purchasing the notes from the OP training course!

    Following fraud investigation and IUC, claimant confirms that she had a partner living with her for period 13/06/05 to 10/04/06 which she failed to declare as knew it would affect her entitlement. An OP is identified.

    Solicitor is suggesting that partner (and I must be honest we don’t know where he is) is a legitimate target. I am not convinced but as I said I am confused!

    As an aside the solicitor wanted details of the claim and I requested authority to disclose. The solicitor doesn’t think this is the case as she attended IUC?

    Kevin D

    I agree that you should hold out for written authorisation from the clmt before offering any info to the solicitor.

    Now to the vexed issue of target(s). Even if the partner is a legitimate target, that doesn’t get the clmt off the hook – she is most certainly a legitimate target. [b:193c079cd7]s.75(3) of the SSAA 1992[/b:193c079cd7] makes it clear that:

    [quote:193c079cd7](3) An amount recoverable under this section shall be recoverable–

    (a) except in such circumstances as may be prescribed, [b:193c079cd7]from the person to whom it was paid[/b:193c079cd7]; and

    (b) where regulations so provide, [b:193c079cd7]from such other person (as well as, or instead of, the person to whom it was paid)[/b:193c079cd7] as may be prescribed.][/quote:193c079cd7]
    Bold is my emphasis.

    So, an o/p is always recoverable from the clmt, unless regs make a specific exclusion. No such exclusion applies in this case. [b:193c079cd7]HBR 101(2)[/b:193c079cd7] then deems the “prescribed” person(s) mentioned in the Act.

    If the partner is a “prescribed” person (er, you decide…. 😈 ), then s.75(3)(b) of the SSAA 1992 makes it crystal clear that a recoverable o/p is recoverable against the clmt, OR the ptnr, [b:193c079cd7]OR BOTH[/b:193c079cd7]. You no longer have to decide to go after one, or the other. You can, but BOTH is now an option.

    If you decide that the o/p is recoverable from both, each must be notified and each is a “person affected”.

    In short, the clmt isn’t going to be able to weasel her way out of responsibility in this case with an “either / or” argument.

    Hope the above helps.

    Neil Adamson

    Had a feeling you would be around today!

    To be fair the solicitor is not trying to shift the blame but more interested in sharing it.

    We have no idea where he is, so impossible to issue him a notification or even enquire if he was aware his previous partner was claiming.

    Aside from being a legitimate target she is of course the easiest as we know where she is and is again on benefit but I am sure I must be wary of making a decision on these grounds!

    Kevin D

    Well, I suppose the fact that she was the clmt AND was the person to whom benefit was paid AND failed to disclose might, just, be reasonable grounds for making her a target… but only just 🙂 .

    Straws, at, clutching, springs to mind….

    Neil Adamson

    Much the lines I was thinking of.

    In all honesty what choice do we have? She is a legitimate target for recovery and although another may exist we have no way of informing him etc etc.

    The OP can’t just sit there in the hope one day we will have an address for him?



    If you think the partner is a legitimate “primary” target then by all means send him a copy of the OP decision to his last known address. You can do no more. I am not convinced you have to but it would be safest to do so I suppose.

    Having given the parties the right of appeal on whether they might be liable, you would then make the decision whether to recover and from whom.

    So far as your decision to recover goes, you may then decide to recover just from the claimant. It is for you to decide on any “sharing” not the solicitor (or a Court or Tribunal) and if you decide to recover in full from the claimant only, your decision on this may only be challenged at JR (and even then only if it can be shown that the decision was “unreasonable” or the process followed was in bad faith etc.).

    Tribunal will not interfere here but as you know you must get the order of the decision-making correct in line with the recent T of C decision.

    “I will certainly be recommending purchasing the notes from the OP training course!” thanks for the Sunday commercial! Still available and Commissioner Jacobs has this week very kindly produced a paper setting out his personal views on “recovery and recoverability – why does it matter”?

    The Commissioner will be presenting this tomorrow at the Current Legal Issues day at which he is a special guest presenter (together with Kevin I am delighted to say) and I will be featuring it on Monday week in Leeds. I am really looking forward to both days myself. Hope to see you there!

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