DLA overpayment

11mee · 24 August 2012 at 6:06PM

Hello All

I am in a rather difficult situation and in need of some advice.
My son had been receiving DLA since 2003 and i was subject to immigration control when i made his application. This was known to DWP as i provided evidence. In 2005 we went to Spain for 5 days which i did not tell DWP as they only need to know if the period outside the country is more than 6 weeks.

i obtained a work permit in 2004 and informed DWP of this change in my immigration status. They advised me to go to our local job centre and get my passport photo copied and have the copies certified and send to them. in 2009 i found out about the new classification of tax credits to public funds and wondered about DLA. I made enquires and received a lot of conflicting information/ advice and the DWP assured me i had nothing to worry about but could stop payments until i was sure. I decided to stop my son`s DLA as i was worried about having been receiving money that my son was not entiled to. After being reassured that everything was in order i requested the DLA to resume. DWP asked for my passport and then my son`s after a few weeks.

They then wrote to me stating the following:
1) that since i took my son out of the country in 2005 he became subject to immigration control and was not entiled to DLA
2) that i needed to pay back the £9 000 overpayment

I disputed this and have attended atribunal hearing in January this year. I have received notice of another hearing in 2 weeks time and am worried that they have been informed by the DWP that there are no records of any contact from myself of any copies of my passport. They also stated that it i should have sent my son`s passport in 2004 and that mine was not relevant. I am only finding this out now.
Since i did not record my calls to DLA in 2004 or send the passport copies by recorded delivery its DWP`s word against mine.

Can anyone help/advise. i know ...it is complicated.
Thank you

rogerblack · 24 August 2012 at 6:35PM

11mee wrote: »

Can anyone help/advise. i know ...it is complicated.
Thank you

This is probably a case where specialist advice would be good.
Having said that.
Have you got the complete file that DWP/HMRC hold on you?
You can get this through the data protection act.
http://www.dwp.gov.uk/privacy-policy/data-protection/ - for example for the DWP.
What was the result of the tribunal in January?
What is the recent tribunal for?

11mee · 24 August 2012 at 7:25PM

thank you for your response.

To answer yout first question- All i have is a copy of the initial application i made and renewal of DLA notices.

The result in January was getting proof that i made any contact with DWP in 2004 to inform them of my change from being on a student visa to a work permit. (Which is when DWP advised me to send a copy of the permit and did not ask for my son`s documents).

The hearing in 2 weeks time i suppose is to reach a decision since they could not in January. They attached a letter informing me that DWP have stated that they have no record of any contact from myself in 2004.

11mee · 24 August 2012 at 7:27PM

oh thank you for the link by the way.

Richie-from-the-Boro · 24 August 2012 at 9:43PM

Green Command ?

Get .. .. as rogerblack says professional help immediately from a welfare benefit specialist [at least the CAB team] its unlikely you will be able to handle these people on your own as they act directly for the SoS.

The difficulty you have is unless you can prove they hold in their possession evidence that you have not 'misrepresented, or failed to disclose, any material fact' that caused the overpayment you can not stop the recovery. How do you do that when they have all the documents concerned ? and how do you prove you sent the documents ? and that they received the documents ? or that they lost the documents ?. Get some help my friend.

Customer Error: The customer has provided inaccurate or incomplete information, or failed to report a change in their circumstances, but there is no fraudulent intent on the customer’s part.

Official Error: Benefit has been paid incorrectly due to inaction, delay or a mistaken assessment by the DWP, a Local Authority or Her Majesty’s Revenue and Customs.

rogerblack · 24 August 2012 at 11:57PM

By 'the result in january' - do you mean the hearing was adjourned to give the DWP time to see if you did contact them, and they have subsequently claimed you did not?

Unfortunately, the two weeks means that data protection access to your file may not be in time.
Phone the number on the DLA letter, and try to obtain a complete copy of your file, including any old computer records, and records of when documents were last deleted from the file.
It is unfortunately usual that they destroy records for which there is 'no business case'.

This would be usual to happen for contacts in 2004, so the fact that it does not exist should not be taken to mean anything, as it would be unusual for there to be a copy. And may in fact be a violation of their policy if there was!

The data retention guide:
http://www.whatdotheyknow.com/request/retention_of_data#incoming-226376

11mee · 25 August 2012 at 8:08PM

Thank you Richie-from-the-Boro. You have raised an important issue about an Official Error. I cannot find any information about what criteria they used to assess elligibility for DLA in early 2000. Currently any persons subject to immigration control apart from asylum seekers cannot claim DLA. I think they awarded the DLA in error in the first place.

11mee · 25 August 2012 at 8:15PM

Thank you Rogerblack. Sorry for not being very clear. Yes the hearing in January was adjourned to give the SoS time to follow up my claim that I did contact DWP and they are saying I did not.

rogerblack · 25 August 2012 at 8:55PM

In that case - as above.
You need to see if they've recorded when they have deleted data from your file, and read and understand the data retention policy as to if they would have kept the data anyway.

If it turns out they would not, then the lack of your letter in the files is irrelevant, and it basically goes down to your credibility.

At this late a date after the decision, it's quite possible that none of the relevant documents, or decisions made on them is in the file.
So, unfortunately, the tribunal may basically end up as 'he said, she said' - where you argue your position, the DWP says 'we must have done it according to the rules, but have no proof'.

You really need to see the full DLA file. It's a pity that this was not requested during the adjournment, as you may now need another one, which the tribunal may be reluctant to grant, or proceed without it.
You could in principle contact the tribunal, and ask if they can request that the DWP send the full DLA file.

At this point, I would strongly consider getting someone experienced in these matters.
On the basis of what you have said, it is not unlikely you will be found to be overpaid.
Even if representation costs a grand to arrange, this may be a good investment.

Richie-from-the-Boro · 25 August 2012 at 10:58PM

"""
They then wrote to me stating the following:
1) that since i took my son out of the country in 2005 he became subject to immigration control and was not entailed to DLA
2) that i needed to pay back the £9 000 overpayment
"""
I've no idea on this, it may be more of an immigration

complication. I see no reason why 5 holi-days out of the country would be interpreted by the DM this way, after all, both the child and yourself were habitually resident in this country. What age [under 16 years ?] was the son at the time of the DLA payments ?, can I assume he was under 16 hence the reason they are chasing you for the clawback ?

Social security legislation provides that, for most benefits, overpayments may usually only be recovered if they were caused by misrepresentation or non-disclosure of a material fact by the claimant. Proving 'official error' for anything recent is an almost impossible test, doing so for something going back this far is a challenge for someone, even as you say finding 'legislation & case law' that will help. Clearly you managed to 'rattle their cage' and make them look harder, however good you are I truly think now that you have arrived at this point you need pro help and given that its just a couple of weeks away you may be best getting pro help and going for an adjournment.

The conditions that must usually be satisfied for an overpayment to be recoverable are that:

- there was a misrepresentation, or failure to disclose, a material fact; and
- the overpayment occurred as a result of that misrepresentation or failure to disclose; and
- the original decision awarding benefit has been changed.

Best of luck 11mee.

11mee · 28 August 2012 at 5:42PM

Thank you both for taking the time to look at my case and offer advice.

DLA overpayment

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