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Thread: DWP overpayment claim begun prior to father death, and continues following his passin

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    Legal7319's Avatar

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    Default DWP overpayment claim begun prior to father death, and continues following his passin

    My father died 2 years ago. We have had completed the probate process and have received what ever there was for the heirs to receive according to the will. During the probate we became aware that DWP had been chasing him for about 20K in overpayments which he continued to contest on various grounds. He planned an appeal against the decision with (I believe) the First Tier, but passed away in the process. Their decision was to uphold DWPs decision of the 20K overpayment. As he has now passed, the debt falls upon the estate. I wrote to DWP directly informing them we intend to continue with my late fathers appeal as he intended and was in the middle of. I also notified the Tribunal Courts who have permitted this. I have just sent them an email requesting for a time restriction increase.

    Upon reading the legal pack and evidence the court has supplied the overpayments came from pension credits that were paid to him based on (according to the DWP) information he provided to them. They later found out some years later that the circumstances had changed given my mothers income and her divorce and thus are looking to reclaim the money back.

    One of the first areas of further investigation I need to chase up is the fact that their calculations may be wrong as I know my mother was possibly working under the required threshold during the years the DWP say my father shouldn't have received the funds. This may reduce the amount payable.

    They also don't have the initial forms that were sent to them many years previously on which this claim of additional pension funds is based. One of my father's grounds is that he doesn't remember dealing with them since 1980, but they're adamant that if money was paid, a claim was put through (but don't have the paperwork to show it).

    I'm currently working through the pack making notes on where evidence maybe lacking on their side and thought it may be useful sharing the situation on this forum for those who may have been successful or have areas I should pursue. I am planning to representing the estate myself. I have approached several solicitors, who have outrightly said any overpayment disputes are usually very difficult to win, but I'm not too confident the documents and grounds of appeal they'd supply would be sufficient enough to sway a decision maker (particularly if they're only charging £200 which I'm presuming might be a modified template letter).

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    enaid's Avatar

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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    Hi and welcome
    Pension Credits started in October 2003, so that's as far as they can go with their investigations.
    Do you have any paper work regarding your dad claim and decision?
    Your dad claimed PC as a single person as your mum was working?
    Here are the first rates http://www.poverty.org.uk/policies/p...20credit.shtml
    A fairlyy simple explanation https://www.theguardian.com/money/2003/jul/08/pensions


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    https://www.carersuk.org/

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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    Quote Originally Posted by enaid View Post
    Hi and welcome
    Pension Credits started in October 2003, so that's as far as they can go with their investigations.
    Do you have any paper work regarding your dad claim and decision?
    Your dad claimed PC as a single person as your mum was working?
    Here are the first rates http://www.poverty.org.uk/policies/p...20credit.shtml
    A fairlyy simple explanation https://www.theguardian.com/money/2003/jul/08/pensions
    I think the pension credits commence in 2004. We don't have any paperwork concerning the application for pension credits if that what you mean. DWP are unable to supply this either.

    He must have claimed for both himself, mother and children (mum started working about ten years following the commencement of the benefit, so possibly later than the DWP are reporting)

    Will look into those links

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    enaid's Avatar

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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    Those links are just giving info as to criteria and amounts when PC first came out.
    Pension Credit is for a top up for people in retirement, if you claim it you can possibly get more benefits too.
    So when did your dad first claim it ?


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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    It appears that the first payment was made in 2005.

    What's interesting is that the application he put in for the credits in 1997 didn't specify that he wanted extra contributions for mum. But they said based on the 'balance probability' payments wouldn't have been forthcoming unless an application was put in place. They have since destroyed that original form in accordance to their data protection policies. In my opinion, this is perhaps a critical point to argue. They cannot supply and proof that the additional contributions were made.

    I am writing to DWP to ask for a range of evidence and quizzing them on the above with various questions.

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    enaid's Avatar

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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    If they have no evidence where has their case come from?
    Well simples, probate has flagged up a large estate, as is the norm, so they automatically think the claimant was not entitled


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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    This actually started before probate and my dad was contesting it since 2014. They became aware because he became divorced before he passed away and they received a copy of the decree absolute. They started to argue that he never told them about the divorce and within that investigation they discovered that my mum was earning more than the threshold over 10 years (which is where this overpayment is being reclaimed back). But, if we were to go in the original form where he didn't ever claim for additional contributions in the first place for my mum, then the points about divorce and my mum would become irrelevant because he didn't claim for her anyway.

    The reason why this still is going on is because they're adamant for someone to receive a benefit, a claim must have been made, but they do not have records to show on their system that he made any application for my mother.

    To cement this particular point, I want to know if I can get pointed to some case law where either benefits (of any kind) have been paid to people in error without their application or have been paid in addition to another benefit (for which the claimant never claim for). Then, if I understand correctly, the case will be judged as administrative error, which I understand isn't recoverable?

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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    I doubt any benefit can be paid without an application, I do know the application is often filled in by social workers, Welfare Officers or CAB. On their behalf but only with permission and working with the details given by the claimant.
    As a couple your dad would have had to have given both his finances and your mums as it an income based benefit and you can still claim it while working. If your mum lived with your dad then they would be classed as a couple. So unless your dad said he was living alone then I can't see how he just claimed for himself and if he did then I would say that is fraud (sorry)
    Last edited by enaid; 27th March 2017 at 06:18:AM.


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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    The thing is though they do not have record of anyone claiming this benefit, and cannot prove it. Is it possible that an error could've been made sometime in the late 90s where systems weren't as advanced as they are now - perhaps things were more manual.

    My mother moved out but they still say that this isn't an excuse, but it isn't this which will be used as a ground for appeal. It's the above.

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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    PC started in 2003, you said first payment was made 2005. If you are going back to the 90s then it would have been Pensioners Minimum Income Guarantee is that mentioned at all ?


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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    No, that's not mentioned. Perhaps he was receiving it prior to 2003, but they haven't included that in the case. They are just reference the period between 2003 onwards

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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    I would like to reopen this thread back up as I have a hearing due.

    One question I did have that cropped up recently it is that what legislation states that the debt of a deceased individual must fall upon his estate, and that it becomes the legal obligation of the estate to clear the debt?

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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    Hi,
    Administration of Estates Act 1925 https://www.legislation.gov.uk/ukpga...16/23/contents
    Part III s.32 may be what you're looking for.
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    Thank you, but seems like the law isn't on my side in that situation. Looks like the estate is still liable.

    Do you have any other avenues I can explore? I've managed to get FOI on document retention which I am arguing they haven't abided by and also case law where overpayments are more in line with my case here.

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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    Sorry thought that's what you were looking for. The debt is due from the estate, however they need to prove the debt amount is correct.
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

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    Default Re: DWP overpayment claim begun prior to father death, and continues following his pa

    To what extent do the DWP need to follow internal guidelines of data retention according to their policies. I've had the hearing but the DJ concluded that because their internal policies were not governed by legislation, they needn't be followed despite the possibility that they may cause evidence to be destroyed.

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