Departments Directions Social Fund GuidePart 6 - Reviews
Direction 43 - Overpayments - misrepresentation etcOverpayments - misrepresentation etc
9000When considering whether there has been an overpayment and whether that overpayment is recoverable, the DM should decide:
- whether the person who applied for a discretionary Social Fund payment or a person who applied on their behalf, misrepresented or failed to disclose any material fact
- whether, as a result of any misrepresentation or failure to disclose any material fact, a payment has been made
- from whom the overpayment is recoverable; and
- the amount that is recoverable.
9001It does not matter whether the misrepresentation or failure to disclose any material fact was fraudulent or otherwise.
9002Where it is claimed that a person is not responsible for the misrepresentation or failure, the DM should consider the following points:
- non-responsibility is limited to those who are blind, illiterate or do not fully understand a particular form they have signed. This may be caused by poor education, illness or inborn incapacity and can be temporary or permanent
- poor education, illness or inborn incapacity alone is not sufficient to show non-responsibility. People are expected to take reasonable steps to understand what they sign
- the burden of proof rests with persons who contend that they are not responsible for the misrepresentation or failure to disclose a material fact.
Knowledge of the material fact
Examples
(1)A relevant officer's decision on behalf of the Department that a person had obtained a Social Fund qualifying benefit by misrepresentation or failure to disclose a material fact may itself be sufficient evidence of misrepresentation in relation to the social fund payment.
(2)There may be misrepresentation in duplicate instrument of payment (IOP) cases where a person signed a declaration to return one IOP without cashing it but goes on to cash both.
(3)Misrepresentation can occur even though a person is unaware of the true position. For example, if the person's partner conceals from him the fact that she has earnings of her own, which if known, would have led to a cessation of IS or income-based JSA.
(4)There is misrepresentation if the declaration on the application form is not qualified, e.g., Declaration: "the information on this form is true and complete". Whether the applicant knew the material fact is irrelevant.
(5)The only exceptions are where the declaration is qualified, e.g., Declaration: "as far as I know, the information on this form is true and complete" or where the applicant states that they did not know what they were signing.
These examples are not, by any means, exhaustive
9003Where cashing an IOP does not involve the signing of a declaration:
- the misrepresentation is the act of presenting the IOP to the bank or building society; and
- the person presenting the IOP misrepresents that there is entitlement to receive that payment as the beneficiary or on behalf of the beneficiary.
Declarations on cheques and payable orders
Example
Cheques for over £250 and payable orders do not contain any form of declaration. It is the act of presenting the IOP to a bank or building society where a material fact has not been disclosed which is a misrepresentation.
When a person signs a cheque for £250 or under, the person signs a declaration that "I acknowledge receipt of the sum to which I am entitled."
Since no mention is made of the reporting of facts which could affect the amount of the payment, signing the declaration is normally a misrepresentation only where, for example:
- in duplicate IOP cases, the recipient had made an undertaking to return one of the IOPs without cashing it; or
- the amount of the Social Fund award has been corrected and the person was asked to return the IOP uncashed.
9004Examples of evidence which the DM may take into account when deciding whether there has been an overpayment and whether that overpayment is recoverable include:
- a certificate of conviction, which relates to the particular qualifying benefits which the applicant was in receipt of at the time of the Social Fund determination under review; or
- a written admission; or
- both a certificate or conviction and a written admission; or
- any other evidence that may be available, e.g., the testimony of a handwriting expert or direct evidence from a witness such as a Post Office clerk who witnessed the act of misrepresentation.
9005-9019
Disclosure reasonably to be expected
9020It is not enough that the person who fails to disclose a material fact does so because they genuinely believe it to be immaterial. It must also be shown that a reasonable person would not think the fact to be material. The DM should:
- consider the information, state of knowledge and circumstances of the person at the time the material fact should have been disclosed; and
- then decide whether a reasonable person would have concluded:
- that the fact was not material; or
- that the fact was material but did not have to be disclosed.
The test of the "reasonable person" is objective.
9021-9039
Deciding from whom the overpayment is recoverable
9040An overpayment is recoverable from any person who applied for a discretionary Social Fund payment or a person who applied on their behalf, who has misrepresented or failed to disclose a material fact. Where a person is acting on the applicant's behalf, the overpayment may be recovered from more than one person.
9041'Any person' may mean:
- the applicant or
- a person, other than the applicant, i.e. a person acting on the applicant's behalf, whose misrepresentation or failure to disclose caused the overpayment
9042In failure to disclose cases, the applicant's partner may have the same obligation but only if it can be shown that the partner knew:
- the material fact; and
- that the applicant had made an application for a social fund payment; and
- that the material fact affected their eligibility for the social fund payment; and
- that the disclosure was reasonably to be expected.
9043-9099
Direction 44 - Action following the Decision Maker's overpayment determination 9100After reaching the determination:
- the DM should issue the determination with a letter telling the person that if he does not agree with the determination he can ask for the determination to be reviewed by the Reviewing Officer(RO)
- if the person asks for his case to be reconsidered, refer the case to the RO.
9101The RO should continue the review action.
9102-9149
Direction 45 - reviewing officer action, first stage 9150In continuing with the review the RO should examine the evidence of misrepresentation and all relevant papers. Re-examine the overpayment determination to ensure that it was made properly, having full regard to whether:
- the law and directions, including the overpayment directions, were followed
- the Department's guidance on overpayments was followed
- the DM acted fairly, followed the required procedural steps and acted without bias
9151Once the overpayment determination has been re-examined to see if it was made properly, reconsider the overpayment determination, see Direction 46.
9152-9199
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