Terms & Conditions

[Anonymous]

HELP!!!
We have just had a case where we believed that a customer was working when claiming I/S but also had a partner.
Our fraud section investigated, and asked the customer to attend an informal interview, so we suspended the claim at fraud’s request, pending the outcome of the interview.
The customer failed to attend on 5 dates, over a period of 2 months, during which time IS remained in payment as although DWP had been advised of our info they had declined to investigate as they felt there was insufficient evidence.
We then terminated from the suspension date because the claim had been suspended for more than a month, and the customer had failed to attend the interview / s.
Customer then made a new claim and requested backdated benefit to the termination date, which we refused. She then appealed against the decision not to backdate, and we have just been to tribunal on this.
The Tribunal chair said that they could not consider the backdating issue until they had satisfied themselves that the original termination had in fact, been legal. The argument was that we suspended and then terminated, but we never asked for any information – from our point of view, the failure to supply came into effect when the customer continued to avoid the interview dates that had been set for her.
If the chair is right, this means that we can never terminate unless we have asked for information ourselves – failure to attend interview is not enough. However, she also mentioned the fact that the customer was in receipt of a passported benefit, and questioned our ability to terminate HB / CTB whilst DWP continue to pay. 🙄
I know that’s long winded but has anyone come up against this scenario or have any thoughts on it?

[Kevin D]

Well, you asked for views…. 🙂

Put it this way, I’d be very very confident if I was representing the clmt.

Firstly, as identified by the Tribunal, on what legal basis could the claim be terminated? [b:355e5fcf32]DAR 14[/b:355e5fcf32] relies on info/evidence requests under [b:355e5fcf32]DARs 11 and/or 13[/b:355e5fcf32]. You have readily acknowledged that no such request was made.

Secondly, the clmt is under no legal duty to attend an oral interview. A clmt is only required to provide such information / documents / certificates / evidence that is reasonably required [[b:355e5fcf32]HBR 86[/b:355e5fcf32]]. That does not extend to requiring a clmt to attend an interview (see [b:355e5fcf32]R v Liverpool CC ex p JOHNSON (1994) QBD[/b:355e5fcf32]). Therefore, at least in my view, the clmt’s avoidance of interviews does not constitute a failure to supply info/evidence.

If that is correct, it is clear there are no grounds for termination.

Thirdly: Can a supersession or revision be applied? Well, at this stage, there are (apparently) no sustainable facts or evidence on which to decide, with any certainty, that there has been any change of circs. In turn, there is no basis for a supersession or revision – especially in light of “fourthly”….

Fourthly: The clmt is on a passported benefit. The only way you could go behind the DWP decision is if the IS had NOT been paid lawfully (in which case [b:355e5fcf32]Hamilton[/b:355e5fcf32] could, potentially, apply). However, and very importantly, the DWP has (apparently) decided the clmt is, and has been, [u:355e5fcf32]lawfully[/u:355e5fcf32] in receipt of IS. If that is correct, Hamilton is of no effect.

Based on the info given so far, I would fully expect the clmt to succeed at Tribunal. And, if it proceeded that far, certainly at Cmmrs.

[Anonymous]

Kevin is right and it has to be said that the DWP have far more powers than do LA’s in this context

Reg 32(1) of the Social Security (Claims and Payments) Regs says:

Information to be given when obtaining payment of benefit

32.—(1) Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom or on whose behalf sums payable by way of benefit are receivable shall furnish in such manner and at such times as the Secretary of State or the Board may determine such certificates and other documents and such information or facts affecting the right to benefit or to its receipt as the Secretary of State or the Board may require (either as a condition on which any sum or sums shall be receivable orotherwise), and in particular shall notify the Secretary of State or the Board of any change of circumstances which he might reasonably be expected to know might affect the right to benefit, or to its receipt, as soon as reasonably practicable after its occurrence, by giving notice in writing (unless the Secretary of State determines or the Board determine in any particular case to accept notice given otherwise than in writing) of any such change to the appropriate office.”

Reg86(1) of the HB Regs says

“86.— (1) Subject to paragraph (1A) and paragraph 5 of Schedule A1 (treatment of claims for housing benefit by refugees), a person who makes a claim, or a person to whom housing benefit has been awarded, shall furnish such certificates, documents, information and evidence in connection with the claim or the award, or any question arising out of the claim or the award, as may reasonably be required by the relevant authority in order to determine that person’s entitlement to, or continuing entitlement to, housing benefit and shall do so within one month of being required to do so or such longer period as the relevant authority may consider reasonable.”

Note the phrase from the C&P Regs

“shall furnish in such manner and at such times as the Secretary of State or the Board may determine such certificates and other documents and such information or facts affecting the right to benefit or to its receipt as the Secretary of State or the Board may require ”

This is considerably stronger than its equivalent in the HB Regs:

“shall furnish such certificates, documents, information and evidence in connection with the claim or the award, or any question arising out of the claim or the award, as may reasonably be required by the relevant authority in order to determine that person’s entitlement to, or continuing entitlement to, housing benefit ”

The phrase “in such manner and at such times ” is conspicuously missing in the HB Regs and I suggest that for HB an LA must have identified a particular question that needs to be addressed by the claimant in order to determine continuing entitlement to HB before any intervention takes place.

The old case R v . Liverpool CC ex p Johnson remains good law in the HB context, and gives claimants considerable freedom as to the manner and format in which they supply evidence and information. Claimants are not obliged to provide information in person

What is more Reg 8 of the C&P Regs makes specific provision for requiring claimants to attend the office in person:

“Attendance in person

8.—(1)
(2) Every person who makes a claim for benefit (other than a jobseeker’s allowance) shall attend at such office or place and on such days and at such times as the Secretary of State or the Board may direct, for the purpose of furnishing certificates, documents, information and evidence under regulation 7, if reasonably so required by the Secretary of State or the Board .”

There is no equivalent to Reg 8 of the C&P Regs in either the HB Regs, the CTB Regs or the HB/CTB (D&A) Regs.

[Chris Cook]

As a Fraud Manager I would agree that the responses given by Kevin D and Stainsby are correct.

The procedures that you have in place are flawed.

Benefit decisions are made by decision makers who as you have found out need to explain why they made such a decision.

As fraud officers we might ask the benefit decision maker to consider a course of action following an investigation, however, it has to be their decision in respect of all the legislation that abounds.

Claimants can be difficult, un co-operative, etc, however that does not allow fraud officers to bypass existing benefit legislation.

If in the process of your investigation you cannot obtain sufficient evidence for a DWP decision maker to suspend the passported benefit (no appeal rights against a suspension decision) or cancel the passported benefit (appeal rights) then you really have no option but to leave benefit in payment.

Probably not the answer you would have wanted.

In respect of investigation tactics there are a number of authorities around who work closely with the police.If you have sufficient evidence for them to make a decision that an offence may have been committed they have the power of arrest and could bring the claimant in for interview. Claimant has his rights explained to him and you go from there.

[david farrar]

Although Liverpool ex parte Johnson does clarify that a Local Authority has no power to insist on an office interview, it did go a bit further than that, and I quote:
[quote:dcc889f89f]I accept entirely that there may be cases where an authority cannot reasonably be satisfied in a claimant’s favour upon one aspect or another unless the claimant is prepared to be questioned. In such a case, where the claimant has declined to be questioned, the authority will determine the claim against him.[/quote:dcc889f89f]

[Anonymous]

Johnson was concerned with the initial decision on a claim for benefit, and it is well established that it is for the claimant to prove his entitlement to benefit. The judee in Johnson was effectively saying that there may be instances where claimants would be well advised to provide evidence in person as it is much easier for them to carry the burden or proving their entitlement by doing so.

The decision to terminate entitlement is a revision or more commonly a supersession (and it can be argued that a decison to terminate under D&A Reg 14 is a supersession despite the DWP’s latest guidance). Here the burden of proof is reversed and it lies on the LA. (Or to quote the old adage he who alleges must prove)

[Author]

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