Massive overpayment of Income Support...advice needed please!!

[MumOfTwinsPlusOne]

Hi, need some advice...here goes!

 

Am a single parent to 3 children, not working, and have been on income support since 2000, never had any problems whatsoever.

 

My mum passed away late 2007 and I inherited her property in early jan 2009 (probate was complicatedand took a long time to administer her estate).

 

I informed the d.w.p of this over the phone to find out what would now happen with regards to my benefits and nobody could tell me what my benefit entitlement would now be in my circs. Brief wafflings about me possibly needing to fill in a form...never received any form.

 

The only thing I was told (on 2 seperate occasions) was that provided the property was to be put for sale (and not lived in or rented out) I would still be entitled to all my current benefits until the property had sold. To this day I do not know if this information is correct.

 

I told them I would be selling the property once my solicitors had transferred the property into my name (and this is what I did, although it is taking a long time and I still have no completion date, so the property still has not actually sold...no money in the bank yet!.)

 

So, just to recap, I firstly informed the d.w.p of my situation over the phone around end dec 2008/beginning jan 2009 as I new that the estate was close to being settled (before I had even inherited the property, just to see what needed to happen next). And secondly, I phoned again end jan and wrote them a letter telling them I had inherited a property (I have a copy of this letter even though they say they never received it).

 

I never once received any communication from them regarding this matter at all.

 

The only thing I ever received was a letter from the council at the end of jan requesting information regarding the inherited property, proof of income support,what my intentions were etc which i sent to them, and funnily enough.....the council received everything I sent them .

 

Fast forward to October 2009...got a letter from d.w.p to say all my benefits have stopped (fair enough I thought, perhaps I have gone past some time limit for having the property up for sale..6 months?...but completion is very near so I am coming off benefits soon anyway, I can deal with this).

 

HOWEVER.....I have just received another letter from dwp debt centre bradford saying they want back nigh on £7,000.00....for the period from end jan-end oct. They are saying they have overpaid me and I have made a 'mistake' and didnt tell them I inherited a property.

 

I have written a 6 page letter (on the advice of the d.w.p debt people in bradford afterI phoned them) to say that I want to appeal this decision.

 

Any words of advice.....anyone been through similar?

 

Thanks to anyone for reading this far...long post!

[MIKEY DABODEE]

Hi,

Something is very wrong here

 

The property you inherited from your mother should not have effected your claim to Income Support untill after probate and then if it was empty and you were taking reasonable steps to sell it. I dont think you should have an overpayment and your claim should still be open and in payment now.

 

I think you need to make an appointment with CAB or Welfare rights who need to ask for a reconsideration of the decision to close your IS and have it reopened, and ask for the over payment to be scrapped. I dont think you need appeal again the OP because if the circumstances are as you have described them then there hasnt been one

 

 

You did everything right and what should have happened was that the Department should have sent you a form called an A64. This form asks questions about the property like value etc and what steps you are taking to sell it. When the form comes back its then referred to a decision maker who usually gives a twenty six week disregard on the property, At the end of this period then the form is sent out again and another twenty six weeks can be given if its not sold and reasonable steps are being taken to sell it. They will ask to see proof of this.

 

Your claim should not have been shut if none of the above steps have been taken. CAB can get in touch with them for you

 

I think the council have informed them about the property and I.S have just shut your claim. You should be on benefit untill the day the house has been sold and the money has been transferred into your bank and then if you intend to buy yourself a house with the money from the sale of the house then you can still be given time to look and still claim

 

You could ring the department yourself and explain the above and tell them that your claim should still be open if ncessary ask to speak to a supervisor. If this fails then you need make a written complaint given as much detail as possible asking for it to be looked at again

 

Good luck you may have a bit of a fight on your hand but you should win

Edited December 28, 2009 by MIKEY DABODEE

[MumOfTwinsPlusOne]

Many thanks Mikey,

 

I have also posted this query on another sight and it is being suggested over there that because a) I did not inform dwp at the correct time in their eyes and b) I did not actively market the property after inheriting it, that I will have to pay back the money

 

I did inform the dwp before I inherited and after. I did not actively market the property as I was approached by a builder wishing to purchase the property and agreed to sell to him, it never needed marketing.

 

Again, many thanks for your positive post, although I feel that, after my mistakes are being pointed out on the other site, I think I have a hopeless case.

[MIKEY DABODEE]

Hi, need some advice...here goes!

 

Am a single parent to 3 children, not working, and have been on income support since 2000, never had any problems whatsoever.

 

My mum passed away late 2007 and I inherited her property in early jan 2009 (probate was complicatedand took a long time to administer her

estate).

 

The Department could do nothing untill probate was granted so from 2007 to Jan 2009 it would have had no effect on your claim.. You should be able to back this up with proof from your solicitor

 

I informed the d.w.p of this over the phone to find out what would now happen with regards to my benefits and nobody could tell me what my benefit entitlement would now be in my circs. Brief wafflings about me possibly needing to fill in a form...never received any form.

 

You notified the DEPT about a change of circumstance the inheritance of your mothers property they should have actioned this by sending you the A64 form, they didnt

 

The only thing I was told (on 2 seperate occasions) was that provided the property was to be put for sale (and not lived in or rented out) I would still be entitled to all my current benefits until the property had sold. To this day I do not know if this information is correct.

 

This is correct but you should have had the form then, complete it return it to the Dept then it should have been referred to a DM, as I have already stated ... This wasnt done and before a decision was made to close your claim this should have been done and you were trying to sell it privately, you can get this confirmed

 

I told them I would be selling the property once my solicitors had transferred the property into my name (and this is what I did, although it is taking a long time and I still have no completion date, so the property still has not actually sold...no money in the bank yet!.)

 

You have it for sale it should be disregarded

 

So, just to recap, I firstly informed the d.w.p of my situation over the phone around end dec 2008/beginning jan 2009 as I new that the estate was close to being settled (before I had even inherited the property, just to see what needed to happen next). And secondly, I phoned again end jan and wrote them a letter telling them I had inherited a property (I have a copy of this letter even though they say they never received it).

 

You did everything right

 

I never once received any communication from them regarding this matter at all.

 

They failed to action your change in circumstances

 

The only thing I ever received was a letter from the council at the end of jan requesting information regarding the inherited property, proof of income support,what my intentions were etc which i sent to them, and funnily enough.....the council received everything I sent them .

 

Your LA informed the DEPT about your property they then closed your IS and raised an overpayment

 

Fast forward to October 2009...got a letter from d.w.p to say all my benefits have stopped (fair enough I thought, perhaps I have gone past some time limit for having the property up for sale..6 months?...but completion is very near so I am coming off benefits soon anyway, I can deal with this).

 

HOWEVER.....I have just received another letter from dwp debt centre bradford saying they want back nigh on £7,000.00....for the period from end jan-end oct. They are saying they have overpaid me and I have made a 'mistake' and didnt tell them I inherited a property.

 

I have written a 6 page letter (on the advice of the d.w.p debt people in bradford afterI phoned them) to say that I want to appeal this decision.

 

Any words of advice.....anyone been through similar?

 

Thanks to anyone for reading this far...long post!

 

 

I can only advise you how I see your claim its up to you if you want to do anything to put this right.

The department hasnt followed the correct proceedures at all

I think you have an excellent case to get your claim reopened and over payment overturned

Please see CAB or Welfare rights

 

But it is up to you whether or not you want to take it further, but you might not think it worth the hassle

But 7k is a lot of money to find

Good luck with the house sale hope things turn out well for you:)

Edited December 28, 2009 by MIKEY DABODEE

[MumOfTwinsPlusOne]

Thanks again Mikey.

 

Your post makes a lot of sense, and yes I will fight it........despite being torn to shreds on the other website, made to feel as though I am lying and contradicting myself (but it is quite a complicated chain of events and I am doing my utmost to remember everything in the correct order)..... and then having them telling me I am basically stuffed .

 

I will take proper advice tomorrow either from the citizens advice or welfare rights and see what happens from there.

 

At least, if they do say I have to pay it back, I will eventually have the proceeds from the sale of the property with which to pay...so in some ways I am probably in a much better position than most when this sort of thing occurs (she says, trying to think positively ).

 

Will update with any progress.

[MIKEY DABODEE]

Please do see either Welfare Rights or Cab.

I know you will have the money from the sale of the house but 7k is a lot of money.

I am only saying for whatever reason the dept didnt action your change correctly, things are sometimes overlooked and I think think things have been in your case for whatever reason.

You have given them full details and in return you havent been sent the forms to process things correctly.

Take what you have to Cab and see what they say.

You have nothing to lose.

Again good luck.

Dont know what site you have been on but I process I.S

and if what you are saying is right then yur claim has been closed incorrectly and the overpayment raised should be cancelled

[RaeUK]

Mum, I don't know what that other website was but do take the advice you get here as serious. The joy of CAG - to me - is the level of support. You have laywomen like me who are in the same boat but do what they can to help and you have a lot of people who understand the system and work in it offering good advice to the benefit of the public in their own precious time.

Make your own mind up but my vote is here...

Good luck.

Rae.

[jansus]

This is not my area of expertise but it seems to me you did everything that you could to advise the appropriate departments of what was happening - thats the problem with this system of phone calls to confirm important changes in circumstance (IMO)

 

Presumably you can ask for transcripts of conversations about your case - and then you can appeal to a higher level if necessary.

[jansus]

I guess what you are really asking is - what records do the DWP keep of phone calls ( as you will have copies of letters) and how long do they keep them - and how do you get hold of those redcords.

 

that is the info you need - then you can get the full facts / sequence of events and build your case up based on exactly what you were told to do and your subsequent actions.

 

So that is the question you should be asking ( sorry I dont know the answer)

 

This is a lot of money and you need to get all the info you require to launch an appeal if you feel you are in the right and have done everything asked of you.

[MumOfTwinsPlusOne]

Yes you are right Jansus...that is exactly what this boils down to....how can I get the proof that I phoned them, and would those calls have been recorded. I found out I can ask my phone provider to provide me with detailsof dates/times that I made the calls.

 

As of today, I phoned debt centre bradford...and they are saying they have not yet received my letter asking to appeal...but he said it was down to the christmas post, and is probably right.

 

As of now, I am simply waiting for a reply from them re me wanting to appeal.

[jansus]

This was posted on another thread in this section:

 

"Read this it's written by an expert in the field & may help

 

Criminal law practitioners who know little of social security law are routinely acting for people charged with social security fraud offences.

My experience as an expert witness in benefit fraud prosecutions, and previously as a frontline adviser, has increasingly led me to feel that injustices are occurring because of the lack of independent social security law expertise in many criminal cases. This article will show how there are substantial risks that some defendants are even being prosecuted when they are fully entitled to benefits and courts are sentencing using inflated fraud figures. The tightening of legal aid spending and consequent specialisation are partly responsible. For example, the Legal Services Commission's (LSC) welfare benefits contract prohibits payment for attending interviews under caution except by criminal contract holders.

There is a common perception that benefit fraud is widespread and costly. Such attitudes can and do influence judicial attitudes and result in the questionable practice of Department for Work and Pensions (DWP) fraud investigators being set prosecution targets as part of their performance-related pay.

Seek expert help early on

The two most common benefit fraud offences are in sections lllAand 112 of the Social Security Administration Act 1992 (SSAA). Both involve knowingly or deliberately failing to notify changes of circumstances or misrepresenting circumstances in connection with benefit claims. One must therefore understand the rules of entitlement for benefits in order to know whether the failure or misrepresentation actually affects benefit entitlement. In other words, there are clear links between civil and criminal law - the former drives the latter. \nRv Passmore [2007] EWCA Crim 2053, Passmore was convicted of offences under section 111A (1)A because he had dishonestly failed to inform the benefit authorities that he had formed a limited company. The court held that no offence was committed unless the failure to notify actually affected entitlement and, as he had not drawn any income from the company, there was no effect on benefit entitlement and the convictions were quashed. The court also held that the benefit fraud legislation must be seen in the 'wider statutory context' of social security law.

Practitioners never cease to be amazed by just how weak benefits authorities' assertions of non-entitlement or of amounts overpaid can be when subjected to knowledgeable analysis.

Investigations

Clients may seek help when they have been asked to attend an interview under caution. Here public funding can be a problem, but the normal considerations about seeking sufficient advance disclosure and advising on silence apply. The DWP's internal Fraud Investigator's Manual (FIM) emphasises the need to obtain admissions by the client during interviews under caution and how to obtain these - so legal advice is vital. There is strong anecdotal evidence that inadequate disclosure occurs and for DWP staff to tell clients that they 'don't need a solicitor'. The latter may have implications for admissibility under the Police and Criminal Evidence Act and the former may be grounds for silence. Expert social security law advice is needed to understand what should be disclosed, to check entitlement and to help assess mens rea.

Practitioners may wish to note the Law Society Criminal Practitioner's Newsletter of January 2006 on advising on silence at police stations, which indicates that in complex cases it may be appropriate to maintain silence and when a prepared statement is appropriate.

An investigation is often accompanied by suspension of benefit - this must not be used to compel co-operation and the matter must be put before a benefit decision-maker to decide entitlement one way or another within a reasonable timescale (excessive delay may be judicially reviewable). Suspension is also discretionary for most benefits.

Benefit appeals

In any prosecution it is important to appeal against the decision to end benefit and any decision on benefit overpayment. Time and again benefit experts find that solicitors fail to do this or fail to in accordance with the regulations. Not only does this severely disadvantage the client, but it may also be negligent.

It is particularly important to ensure that the appeal is submitted in the correct format and within the statutory time limits - a maximum of one month after the date of decision. After one month, it is necessary to explain the delay and why the appeal has merits such as a reasonable prospect of success. There is an absolute limit of 13 months from date of decision. A referral to an expert should also be made to undertake representation at the appeal and to consider the possibility of LSC exceptional public funding.

Not only is the benefit appellate process the proper adjudicator of entitlement in disputes, but a successful appeal will usually result in any prosecution being discontinued. One must therefore wonder why the FIM states that DWP will seek to postpone any appeal hearing when a prosecution is being taken - there is no legal authority for this and it risks the courts acting on questionable evidence of benefit entitlement.

Inflated figures

The amount of overpaid benefit is crucial to sentencing and the DWP's strategy to publicise significant fraud convictions. However, benefit overpayments are frequently incorrect - 67ao of them, according to the latest data published by the DWP. Thus there is a huge risk of courts being misled unless someone checks the overpayment. Even pressing for a detailed breakdown of how an overpayment has been calculated may cause the benefit authorities to spot errors.

A common way for people who work while claiming to be detected is by data-matching between DWP and HM Revenue & Customs computers. Under section 71 of the SSAA, when the material fact of employment is revealed to the DWP, any consequent overpayment is not recoverable and should not be included in the figure presented to the court (see also the FIM). However, it may be weeks, even months before the evidence is put before a benefit decision-maker and the overpayment is therefore inflated by official error.

Another inflationary measure is to fail to offset underlying entitlement to benefit - for example, the client may have been overpaid but still be entitled to some benefit. This is a specific statutory requirement for income support and housing benefit.

Then there is notional entitlement offset - commonly when someone has been working while claiming or has not declared their partner. For example, someone may lose entitlement to income support if they work for 16 or more hours a week, but had they declared their position, they may have been entitled to tax credits. Because of recent welfare reforms, claimants are often better off doing this than working while claiming. The amounts of notional tax credits and other benefits payable while in work are very relevant for sentence because they show the true net loss to the public purse.

Similarly, underclaiming of other benefits (for example, because of disability) may be mitigation as well as reduce an overpayment.

DWP practice seems to be to not mention these points to the court or the defence. This is not helpful and can mislead the sentencer (who may well not be aware of the concept of not';-; in-work benefits and tax credits). Expert input is essential.

Given the moral panic about benefit fraud, criminal and social security law practitioners need to improve joint working in the interests of justice. History teaches us that unless the law rises above moral panic, the seeds of injustice come to flower."

__________________

[jansus]

http://www.consumeractiongroup.co.uk/forum/benefits-tax-credits-minimum/236085-overpayment-recovery-test-case.html

 

 

http://www.consumeractiongroup.co.uk/forum/benefits-tax-credits-minimum/125283-useful-links.html

[jansus]

Apparently you can send SAR leter to DWP and ask them to reveal records of all calls you made between X and X and any other info you require.

 

Just adapt the letter to your personal case.

 

If they "miss" some then your telephone records will obviously help.

 

 

http://www.consumerforums.com/resources/templates-library/48-bank-templates/110--data-protection-act-1998-subject-access-request-

[MIKEY DABODEE]

I am trying to get my head around this.

Your claim as been closed just because of the property.

No forms have been sent to you in respect of the property to determine its value, what you are doing with it, you could have in effect moved into it, where you trying to sell it. What was the value etc

 

These are all questions that would have been answered on the A64 form that should have been sent to you.

 

This then should have gone to a DM to see how the property effects your claim.

 

Even if the deptartment is saying its only found out about the property now in Oct this year and you inherited it last Jan they cant just shut the claim untill they have the full details from you, Your claim should have been suspended whilst this decision was being made

I do think your first step is to get the closing of you claim looked at again.

If none of the above has taken place then it looks like your claim has just been closed without a DMs decision which is not the correct proceedure at all in cases like this

Welfare rights can help with this you need the decision to be looked at again. They can help you with any appeal, and making a complaint, which I think you may need to do

 

 

Jansus offers excellent advice

Edited December 30, 2009 by MIKEY DABODEE

[MumOfTwinsPlusOne]

MIKEY, Ok, I have checked through my paperwork, and in OCTOBER 2009 I did receive a letter from dwp to say...your claim has been suspended, we require further information. I provided them with the information they asked for at that point OCTOBER 2009.... then I received a further letter in NOVEMBER 2009 to say benefits had stopped (from JUNE 2009 although don't know where the JUNE 2009 date came from). Then in the DECEMBER 2009 I received the letter from dwp debt centre bradford about the overpayment.

 

Now, I remember when I got the letter about the suspension I phoned the dwp to ask why, and they said they needed further info, I said fair enough I will send it , which I did, and they said 'when we receive the info the suspension may be lifted'.

 

I also just assumed when I received the NOVEMBER 2009 letter that they had received all my info, assed the situation and stopped the benefits because my 'time was up' so to speak, with regards selling the property.

[jansus]

could you post up the letter without personal details stopping your benefit and then about the overpayment?

 

did you ever live in the property?

 

How do you think in Oct they suddenly claim to know what is happening if they are saying you never gave them info?

[MIKEY DABODEE]

Ok that makes it clearer.

 

I think this is what may have happened, I think they found out about the property October maybe from the LA, suspended your claim and asked you for info. A decision was made that a twenty six disregard would be given from Jan when you inherited the house to June. From June you claim would close as the property would be classed now as capital.

Have you asked for this to be looked at again. You could argue that the sale has taken longer to go through and you have received no capital as yet.

But where do they get the 7k from. Have you have a breakdown of how this was worked out

[MumOfTwinsPlusOne]

MIKEY ...agree 100%...that makes perfect sense to me.

 

I have not asked for this to be looked at again. I am just trying to get my head around this near on £7,000.00 overpayment first.

 

I do not want to reclaim, certainly not after all this. I want nothing more to do with the dwp.

 

I just want to get this 'overpayment' business sorted out.

 

Just checked the letter from bradford...they have not broken down the payment. It is just a lump sum written down and then a period jan 2009-september 2009

I hope that makes sense.

[MumOfTwinsPlusOne]

Jansus...

 

 

Benefits have stopped letter:-

 

Dated 5th November 2009

 

About your income support

 

I am writing to tell you your income support will change.

 

This means from 12 June 2009 you are not entitled. This is because your circumstances do not meet the conditions of entitlement.

 

etc....

 

 

Overpayment letter

 

Dated 30/11/2009 (did not receive it until first week december)

 

Dear .....

 

Notice of overpayment

 

Overpayment of income support

 

Amount overpaid .....

Period of overpayment ../01/09 - ../09/2009

 

We are writing to you because to much benefit has been paid. This letter explains how the overpayment occured and what to do next.

 

The overpayment occured because on ../01/09 your circumstances changed and the office that paid your benefit was not told at the correct time about a change to the amount of savings held by you or one of your dependents.........

 

This money must be paid back under the law.........

[MumOfTwinsPlusOne]

Jansus, I have never lived in the property, its uninhabitable.

 

As to the letter I got in OCTOBER 2009 about the suspension...I have no idea what promted them to send this. Maybe they suddenly remembered me and my phone calls, or found my letter that they deny ever receiving!!

 

I do not actually have that suspension letter in front of me...just a note I wrote myself saying...suspension letter received OCTOBER 2009/further info required/all info sent back along with letter..so basically I sent them back their suspension letter along with all the info they asked for.

 

Thank you for all your helpful responses.

[MIKEY DABODEE]

MIKEY ...agree 100%...that makes perfect sense to me.

 

I have not asked for this to be looked at again. I am just trying to get my head around this near on £7,000.00 overpayment first.

 

I do not want to reclaim, certainly not after all this. I want nothing more to do with the dwp.

 

I just want to get this 'overpayment' business sorted out.

 

Just checked the letter from bradford...they have not broken down the payment. It is just a lump sum written down and then a period jan 2009-september 2009

I hope that makes sense.

 

 

Duplicate

Edited December 31, 2009 by MIKEY DABODEE

[MIKEY DABODEE]

MIKEY ...agree 100%...that makes perfect sense to me.

 

I have not asked for this to be looked at again. I am just trying to get my head around this near on £7,000.00 overpayment first.

 

I do not want to reclaim, certainly not after all this. I want nothing more to do with the dwp.

 

I just want to get this 'overpayment' business sorted out.

 

Just checked the letter from bradford...they have not broken down the payment. It is just a lump sum written down and then a period jan 2009-september 2009

I hope that makes sense.

 

They have not given you any disregard on the property at all

THey have niled your claim from January sounds a bit harsh.

 

Still sounds like a lot of benefit. Where they paying for the children ?

 

You will have to appeal against the OP if you are happy with that decision

[RaeUK]

...Still sounds like a lot of benefit...

 

A very rough calculation would put it at approx £170+pw.

 

Rae.

[MumOfTwinsPlusOne]

I was receiving income support for me and the three children ( I only switched to Child Tax Credits a few months ago).

 

I never claimed any housing benefit as I own my own property with a mortgage, so I was instead also receiving mortgage interest relief.

 

I also claimed council tax benefit .

 

Although I am not happy that they have stopped the benefits if they were incorrect in doing so, I am also not strong enough to deal with the two issues at the same time.

 

To go through a whole process again just to get them to re-open my claim, only for me to have to stop it again shortly....to me it is not worth it. I am getting help from my family at the moment, and I will be able to pay them back out of the proceeds of the sale. Would much rather have it that way in light of all this.

 

The overpayment is what I need to concentrate on.

 

Is there any written information anywhere that I can read regarding the 26 week disregard. I was verbally told about it on the phone by someone at the dwp, but can never seem to find this anywhere in writing (especially relating to an inherited property).

 

Because if I understand you correctly...they are in essence saying that I failed to disclose information, information which WOULD NOT have affected my benefits anyway for the first 26 weeks?

[MIKEY DABODEE]

I think they are treating the property as capital from January, I have trawled the net looking for the rules on this and cant find anything in writing but I have seen

cases like this before and I am sure they should have given you the twenty six week disregard making the overpayment from June 2009. But they havent, they have treated the property as capital from day one In Jan.

 

 

I think you need to ask them first for a copy of the DM decision to find out how they came to this conclusion, or a written explanation of their decision, you are entitled to one. I am not saying you should ask for your claim to be reopened I know you dont want to but this explanation will tell you whether or not they think you failed to disclose information.

And I think thats what they are saying with this decision.

 

But you are in the dark untill they give you the full facts and with them you can see what you need to do

 

You can use this then as the basis of your appeal against your op

Edited December 30, 2009 by MIKEY DABODEE