Income support overpayment appeal tomorrow! Advice needed

[Mmjan]

Hi all, I am giving evidence on my mums behalf for an overpayment at the tribunal tomorrow. My mum is not well and the judge has accepted that I give evidence on her behalf.

 

I was ok until now when the nervous have kicked in. I just want to know what I am to expect at the tribunal, in respect of procedure, likely questions they may ask etc. Never been to one before. I have a solicitor attending with me.

 

We have argued that the overpayment is not recoverable due to official error. My mother had declared he accounts in 2004 in an interview under caution and the DWP had said they would obtain balance information. They did the same in 2006 and the in 2007. It now transpires that DWP have lost files for the 2004 and 2006 investigation. In 2007 they wrote to my account provider and received my account balances in 1 week. Although it took them 2 years then to act on the information.

 

The overpayment relates to 2004 to 2006. My solicitor says I have a good chance but I am just so nervous about it.

 

Any advice much appreciated.

[estellyn]

Do you have proof of the information being declared?

[Mmjan]

Thanks for the reply.

 

No proof as suchI have a statement from my mum and a statement from my grandmother who attended with my mother at this first interview in 2004. DWP alleging that no such interview took place. My mother was advised by the DWP lady at the interview that she would write to all concerned to get balance information and told her she did not need to to do anything else.

 

I have two statements and the DWP have no files to say that my mum did not declare.

 

Again in 2006. Form of authority's were again signed for the release of financial details. There is a mention of this in the paperwork.

[estellyn]

well, what will happen is that you and your representative will go into an informal room with a judge to have the hearing.

 

These cases are decided on a 'balance of probabilities', what this means is that the judge looks at all the information provided and decides on a balance of probabilities which is the likeliest argument to be true.

 

A form of authority signed in 2006 for release of financial information would have no bearing on an overpayment from 04-06. Basically, in a case of you said and the DWP said, the DWP are always likely to be believed in the absence of evidence to the contrary. So the judge will be looking at any proof that information on the accounts was provided between 04 and 06. If you don't have any proof (letters from relatives don't count as proof) then I would say the chances of winning the appeal are slim. Surely your mother has the tape from the IUC which she would have been given at the end of the interview - this would go a long way to showing that the DWP had missing information.

[Mmjan]

The tape was requested from dwp but they have not got it. My mother did not ask for one at the time.

[estellyn]

The tape was requested from dwp but they have not got it. My mother did not ask for one at the time.

 

So the evidence you have is your mum and grandmother's word that an IUC was conducted in 04 and that accounts were declared, but your mum has no proof of this and the DWP deny there was an IUC in 04?

 

Do you have any other evidence that the accounts were declared?

 

I take it the overpayment is due to savings in the accounts? If so has a diminishing capital calculation been done by the DWP?

[Mmjan]

Diminishing capital calculation has been applied. I have no other proof. I know it's naive of me but didn't think I needed to have kept proof of something that happened in 2004 thinking that I may need it 8 years later.

 

Why would the judge believe the DWP over what I say. I have some evidence ie the statements the DWP have nothing, no file etc. can I not highlight the dwp's failure to act on information. DWP wrote to the account providers in 2007, i know you say this year is not relevant, they got the information one week later but still did not stop my mums benefits until march 2010, some 3 years later.

[estellyn]

Diminishing capital calculation has been applied. I have no other proof. I know it's naive of me but didn't think I needed to have kept proof of something that happened in 2004 thinking that I may need it 8 years later.

 

Why would the judge believe the DWP over what I say. I have some evidence ie the statements the DWP have nothing, no file etc. can I not highlight the dwp's failure to act on information. DWP wrote to the account providers in 2007, i know you say this year is not relevant, they got the information one week later but still did not stop my mums benefits until march 2010, some 3 years later.

 

Lots of people state they have provided information when the DWP say they haven't received anything, some of these people are lying and some are telling the truth. Unless there is solid evidence of other information being lost by the DWP, then the judge won't believe the appellant, because on a balance of probability decision, with nothing other than family statements, they have no idea whether the appellant is lying or telling the truth - so they err on the side of the DWP - an absence of information on the DWP's side means nothing unless they have admitted they have lost some information - then you might have a small chance - have they done this on the appeal paperwork?

 

I know I'm not telling you what you want to hear, and maybe there is other info you haven't mentioned that might have an impact. But I just say it as I see it from my experience of these types of appeals.

[Mmjan]

Thank you so much for your replies, much appreciated. The DWP stated that the appropriate "do not destroy" labels were not put on my mothers previous files and as a result all paper files have been destroyed, together with the computer records have been archived.

 

The DWP have clearly stated this in the appeal paperwork. They have also admitted that mistakes were made in 2007 as it took them nearly 3 years to act on information which they had. Although they said this was due to a backlog.

 

I don't mind any of your comments, it's good in a way to be aware of the negatives of the case aswell, especially from someone with experience.

 

All I can do is answer the questions as best I can. It's awkward when I myself have limited knowledge of what has happened.

 

Thanks again and please do reply if anything else comes to mind.

 

I will of course update tomorrow as to what happens.

 

Do DWP reps attend.

[estellyn]

Please do update us, and good luck - hopefully the DWP admission of losing the files will give you the edge you need.

[id6052]

based on the limited information available, i could see this going either way

 

i understand that you will be giving information on your mother's behalf, but can i ask whether she will be attending?

 

i often find that in these cases, the deciding factor can be whether the judge believes the claimant's testimony to be credible, which is an easier decision to make if your mother attends

[Feebee_71]

What form do the statements from 2004 take? Are they just written notes from your mum and grandfather or are they print outs/hand written notes on DWP paper that could have been produced as contemporary notes from an interview?

 

I'm not an expert but surely someone having such statements would seem more credible as having been involved with such an interview or process almost 10 years ago - especially given that theDWP have admitted in the appeal paperwork that they have destroyed copies of the files they held on your mothers claim..

 

Good luck today, hopefully there is enough doubt for the tribunal to decide it's a case of official error rather than non declaration of savings.

 

Feebee_71

[Mmjan]

Hi all, I have just returned from the hearing. It wasn't as bad as I was dreading it to be.

 

Well, I was giving evidence on my mums behalf, she did not attend. She is house bound suffers from muscular distrophy and sleep apnea. She has ventilation machine which she has to have on day and night.

 

Judge was not happy that DWP did not attend. He wanted to ask and investigate into what had happened to the files. He accepted that an interview did take place in 2004 and accepted my statement along with my mothers written statement which detailed the interview under caution in 2004.

 

Finally, the verdict was in my mums favour and our appeal upheld. YES FINALLY.

 

The overpayment was as a result of an official error and my mum having signed authorities in 2004 was a valid disclosure and it was DWP who failed to act on this information.

 

Thank you to everyone who replied and read my post.

 

Moral of the story, do not give up, I have been fighting this on behalf of my mum for nearly 3 years. First got an overpayment reduced from £26,000 to £6,000 and now showed it to be not recoverable.

 

Thank you again, just hope DWP do not lodge their own appeal.

[estellyn]

Hi all, I have just returned from the hearing. It wasn't as bad as I was dreading it to be.

 

Well, I was giving evidence on my mums behalf, she did not attend. She is house bound suffers from muscular distrophy and sleep apnea. She has ventilation machine which she has to have on day and night.

 

Judge was not happy that DWP did not attend. He wanted to ask and investigate into what had happened to the files. He accepted that an interview did take place in 2004 and accepted my statement along with my mothers written statement which detailed the interview under caution in 2004.

 

Finally, the verdict was in my mums favour and our appeal upheld. YES FINALLY.

 

The overpayment was as a result of an official error and my mum having signed authorities in 2004 was a valid disclosure and it was DWP who failed to act on this information.

 

Thank you to everyone who replied and read my post.

 

Moral of the story, do not give up, I have been fighting this on behalf of my mum for nearly 3 years. First got an overpayment reduced from £26,000 to £6,000 and now showed it to be not recoverable.

 

Thank you again, just hope DWP do not lodge their own appeal.

 

Well done, you obviously did a great job on your Mum's behalf. Sounds like the DWP really let themselves down - not turning up is pretty silly and unfortunately all too common.