Post by nickd on Jan 7, 2011 10:50:02 GMT 1
Mrs M came to see us on the recommendation of the Tribunals Service, she had been trying to contest an Income Support overpayment appeal against a case for recovery of nearly £15,000. The Tribunal realised that Mrs M needed help, so they adjourned the hearing and advised her to seek advice from a Legal Aid specialist, they gave her our name.
We saw Mrs M and took full details. We looked at the considerable amount of documentation involved with the case. The grounds for recovery were made on the basis that Mrs M had failed to declare a beneficial interest in a trust which her severely disabled daughters had acquired; this being entrusted to them following the death of their late father. They could not and indeed did not access the trust until the age of 18. The Trust was tied up in a property and some residual proceeds to which Mrs M had no access.
We argued that the DWP rules on the need to disclose were far from clear, we went on to say the trust was immensely complicated with its inherent access problems and in any event there was Departmental error in so far as the DWP should have moved Mrs M's claims for her children from Income Support over to Child Tax Credit. The Child Tax Credit rules would have meant that the beneficial interest would have made no difference to what they were entitled to, in summary it was a technical overpayment which existed only on paper.
We looked at the review forms carefully and noted that Mrs M had answered the questions correctly, there was no particular question which made it clear what the reporting requirement was. The DWP relied upon the letter of the law as far as the effect capital would have in a trust held for the children, if it exceeded £2500 (it was later increased to £3000) the children were not entitled any dependant's allowance in Mrs M's claim.
We argued against this and highlighted the problems with the DWP's review forms and instructional leaflets. We were convinced we had a good case.
We went to a First Tier Tribunal with detailed submissions. We attended the hearing on a pro-bono basis but claimed for preparing the papers. The Tribunal did not accept our argument and said that Mrs M was under a generalised duty to report the change in circumstances. We disagreed and argued that where the reporting requirement was not clear, the Tribunal must consider what it was reasonable to expect Mrs M to have known to have declared. We pressed the point that the reasonable rule applied under the provisions of the claims and payments regulations. Mrs M lost the appeal, we strongly disagreed with the Tribunal's decision.
We subsequently appealed to the Upper Tribunal and leave to appeal was given. The Secretary of State fully supported our appeal and agreed that the First Tier Tribunal was wrong to fail to pick up our argument on the reasonable test provided for in the regulations, the Secretary of State readily conceded that the forms and leaflets were very unclear and had to be subsequently altered at a later date. The Upper Tribunal allowed our appeal on the grounds made by us and readily accepted by the Secretary of State. We obtained a very good ruling for Mrs M in the Upper Tribunal and are very pleased with the judgement.
The case still has to go back to another First Tier Tribunal (this is quite common) which has been issued with full directions by the Upper Tribunal on how the case should be determined. As this part of the case is ongoing we can say no more, we are however confident that the outcome will be a much better one because we can use argument which the previous Tribunal erroneously ruled to be irrelevant.
This case illustrates how Legal Aid is absolutely vital to people like Mrs M, there is no way on this earth that Mrs M could have got through this; it was totally beyond her comprehension. I should add that Mrs M had visited other non-specialist agencies who had all told her the case was beyond their level of expertise.
I wonder just how much this case has cost the DWP, many thousands of pounds I would say.
These are the just some of the cases we argue day in day out on behalf of our client's, this is Legal Aid Mr Clarke, this is not "basic mechanical advice", as Mr Clarke puts it, which could be given in another way.
A perverse aspect to this case is over how the whole situation could have been avoided if only the DWP had (1) Made the rules, their forms and leaflets clearer, and (2) Did what Parliament intended and transferred Mrs M's child related claim from Income Support over to Child Tax Credit as per their promise to do so on a 'case by case' basis. Had they done so, this case would never have arisen, the DWP must accept some blame for their failure and for neglecting to protect their own purse.
We saw Mrs M and took full details. We looked at the considerable amount of documentation involved with the case. The grounds for recovery were made on the basis that Mrs M had failed to declare a beneficial interest in a trust which her severely disabled daughters had acquired; this being entrusted to them following the death of their late father. They could not and indeed did not access the trust until the age of 18. The Trust was tied up in a property and some residual proceeds to which Mrs M had no access.
We argued that the DWP rules on the need to disclose were far from clear, we went on to say the trust was immensely complicated with its inherent access problems and in any event there was Departmental error in so far as the DWP should have moved Mrs M's claims for her children from Income Support over to Child Tax Credit. The Child Tax Credit rules would have meant that the beneficial interest would have made no difference to what they were entitled to, in summary it was a technical overpayment which existed only on paper.
We looked at the review forms carefully and noted that Mrs M had answered the questions correctly, there was no particular question which made it clear what the reporting requirement was. The DWP relied upon the letter of the law as far as the effect capital would have in a trust held for the children, if it exceeded £2500 (it was later increased to £3000) the children were not entitled any dependant's allowance in Mrs M's claim.
We argued against this and highlighted the problems with the DWP's review forms and instructional leaflets. We were convinced we had a good case.
We went to a First Tier Tribunal with detailed submissions. We attended the hearing on a pro-bono basis but claimed for preparing the papers. The Tribunal did not accept our argument and said that Mrs M was under a generalised duty to report the change in circumstances. We disagreed and argued that where the reporting requirement was not clear, the Tribunal must consider what it was reasonable to expect Mrs M to have known to have declared. We pressed the point that the reasonable rule applied under the provisions of the claims and payments regulations. Mrs M lost the appeal, we strongly disagreed with the Tribunal's decision.
We subsequently appealed to the Upper Tribunal and leave to appeal was given. The Secretary of State fully supported our appeal and agreed that the First Tier Tribunal was wrong to fail to pick up our argument on the reasonable test provided for in the regulations, the Secretary of State readily conceded that the forms and leaflets were very unclear and had to be subsequently altered at a later date. The Upper Tribunal allowed our appeal on the grounds made by us and readily accepted by the Secretary of State. We obtained a very good ruling for Mrs M in the Upper Tribunal and are very pleased with the judgement.
The case still has to go back to another First Tier Tribunal (this is quite common) which has been issued with full directions by the Upper Tribunal on how the case should be determined. As this part of the case is ongoing we can say no more, we are however confident that the outcome will be a much better one because we can use argument which the previous Tribunal erroneously ruled to be irrelevant.
This case illustrates how Legal Aid is absolutely vital to people like Mrs M, there is no way on this earth that Mrs M could have got through this; it was totally beyond her comprehension. I should add that Mrs M had visited other non-specialist agencies who had all told her the case was beyond their level of expertise.
I wonder just how much this case has cost the DWP, many thousands of pounds I would say.
These are the just some of the cases we argue day in day out on behalf of our client's, this is Legal Aid Mr Clarke, this is not "basic mechanical advice", as Mr Clarke puts it, which could be given in another way.
A perverse aspect to this case is over how the whole situation could have been avoided if only the DWP had (1) Made the rules, their forms and leaflets clearer, and (2) Did what Parliament intended and transferred Mrs M's child related claim from Income Support over to Child Tax Credit as per their promise to do so on a 'case by case' basis. Had they done so, this case would never have arisen, the DWP must accept some blame for their failure and for neglecting to protect their own purse.
