DWP - Recovery from Estates

[Tunstej]

Hi all, hopefully someone out there might be able to give me some advice. My mum died in September 2017 after an extremely long illness, she was 72 at the time and in receipt of the higher DLA rates and Pension Credit. I am the eldest son and was mums executor of her will which was very straightforward, approximately £16000 savings split 6 ways and mums house devided equally between my 2 brothers and I. I decided to apply for probate myself and received this in November, with the money distributed the following month and the house being registered in our names in equal share. In February I received the first letter from Recovery From Estates informing me that there may have been an overpayment to mum of Pension Credit and not to distribute the estate, which was obviously too late. So I informed my brothers and other family members of this and provided all of the information and bank statements that were required. Finally, in June the DWP informed us that mum had been overpaid by almost £900 and that this was owed by the estate. Now this was just a very basic letter, with no workings or explanation for why this money was owed, so I contacted the DWP and asked for evidence which has finally arrived today.
Once again a paucity of evidence has been provided, but at least more of an explanation. Apparently there should have been a full review of mums circumstances at 65, so in 2009, but there wasnt one. The letter claims that a review form would have been issued, (no evidence a form was sent) but because one wasn't received then the pension credit continued to be paid on the information given by mum in 2004 when she was 60. Apparently there should have been a further review in November 2014 when Mum was 70, however, this was completed late (no explanation for why) in August 2015. It is claimed that a review was done by telephone and a form was sent to mum to check if the information given was correct. It is claimed that mum advised the DWP there were "no changes" over the phone, but there is no evidence to show that Mum did state this, it's just a "note on the system". It is claimed that the form was received by the DWP the following month, with Mum failing to disclose her capital, which was savings of £12000 (built up simply because she was so ill and housebound), however, incredibly the DWP have no copy of this form "no copy of the form is held", again, it is just a note on the system, allegedly. Mum did send a letter which was in response to the phone call and this dealt exclusively with a change in her ground rent/landlord, but there is of course no record of the conversation so we don't know what mum was asked at all. Now why have the DWP kept a copy of the letter and not the form which is of far more importance given that effectively mum has committed fraud by not declaring her capital. It simply does not add up. Now if mum has failed to disclose this £12000 then it would be totally out of character as she was as honest as the day is long and she knew how much money she had saved, so this makes little sense to me. If the DWP have proof that mum failed to disclose the money at this time then I would have no issue with re-paying the money, but there is no evidence and no explanation for why they have not kept a copy of this pivotal form.
It appears the DWP are relying on system notes rather than actual evidence provided (or not) by Mum. Any advice would be greatly appreciated.
Thanks

James

[Jinxer]

The DWP seem to be a law unto themselves these day's. I'm not sure but always thought any claims against an estate had to be done within six months of probate, someone with more knowledge maybe able to confirm this or not.

[Tunstej]

Thanks for the reply Jinxer. I'm not sure on that but even if it was the case they were just within the 6 months. I did query this and asked why they had taken so long to contact me and told them that I'd already distributed the estate, but they said they were within the allowed time period. It just amazes me they they can base their decision on mum allegedly failing to disclose her savings at a review when there is no evidence to support their position. I work for the Home Office and deal mainly with litigation cases. If I was to present this "evidence" i.e. only "system notes" then it would get laughed out of court. Surely they should provide evidence that a form was sent to mum in 2009, their letter states a form "should" have been sent, a carefully chosen word which indicates to me that they have no evidence a form was sent. I know that with HMRC and tax credits you have to fill in and return the form and sign to confirm no changes. Surely DWP can't do this over the phone as they claim was done in the 2015 review? At the same time they also sent a form and claim Mum signed and returned this to confirm no changes. Conveniently for them and despite being only 3 years ago, they have not retained a copy of the form. I would suggest that if they were going to hold this against someone as they are even after Mums death, that they should produce the form as evidence?
Can anyone who has experience of dealing with the Recovery From Estates department confirm if they should provide the evidence of Mums failure to disclose her assets at the time of her review?

Thanks

[Peridot]

Hi Tunstej,

Unfortunately the DWP has an exemption with regard to the 6mths for bringing a claim. They are well known for being slow at dealing with these matters which is not helpful when trying to sort out the various issues that arise for executors and families when someone dies.

The Priority 1 team who will have been the department who initially contacted you, generally try and help or point you in the right direction. The debt recovery team who chase the overpayment, can be a bit more tricky.

If it is shown there is a definite overpayment then the executor can be personally liable for the debt if they are unable to persuade the beneficiaries to return a % of the debt outstanding. It does sound like you've got a handle on things though, so probably no panic on that front.

The DWP is entitled to claim back the overpayment and when you look at how an overpayment can occur they have pretty much got all bases covered, so even if you suspect they have made an error or calculated something incorrectly as well as the obvious admin errors such as receiving 2 payments instead of one in a month for example the onus would appear to fall on the individual receiving the benefit. https://www.gov.uk/benefit-overpayme...ave-to-be-made An individual is even expected to inform the DWP if they suspect they may have calculated something incorrectly and this was nothing to do with information that has been provided to them by the individual. Bearing in mind how complicated some of the benefits calculations are it does appear unfair but basically gives a wide inclusion for the claiming back of overpayments.

Trying to get the correct information from the DWP with regard to the assessment of the benefits paid is difficult. Generally to challenge a benefit decision you would need to have the evidence to show they had made an error, which in the circumstances is unlikely as any documentation will no doubt be long gone from your mother's possessions. I suppose the documentation is of little significance (despite the fact the rest of us mere mortals have to evidence everything when we challenge!), if there are bank statements for the time demonstrating that any savings were over the lower threshold, so any benefits award would be affected.

It is tough when estates receive a claim for an overpayment from the DWP. It is not an accusation of fraud, but unfortunately can feel like it. Ultimately if there were sufficient savings to affect any entitlement then irrespective of what information the DWP has retained or not they are entitled to repayment of any miscalculated payments made. It would be for you to prove that their calculations are incorrect (through evidence of bank statements at the time the calculations were made for instance), not the other way round

unfortunately

. We are the ones having to evidence that their calculations are incorrect or they have made an error. I'm sure you have had a look here already but this may give you some pointers (although it is of course dealing with live claims: https://www.citizensadvice.org.uk/be...efit-decision/
I will keep looking to see if I can find any more guidance for you and post it here if I do.

[grumpygraham]

The DWP can raise their claim unless the Executors had advertised in the press that Mum had died and giving notice of distribution of the estate. If they are outside of the stated period they have no claim.

However, it seems to me that the DWP deliberately overclaim to oblige/encourage executors to supply the appropriate information. By law they can only legally demand the assets at time of death - they have no "right" to any other information. And in the absence of information they then make wild assumptions and present them to you as facts in order to put pressure on you..

If the Estate has already been distributed then the DWP claim is against the Executors. To get their money they will have to make a claim against the executors in the civil courts. At this stage they would actually have to produce evidence to fully substantiate their claim. My impression is that few cases ever go to court because they know that in fact there is nothing of substance to their claim other than a suspicion that the claimant told porkies. However, suspicion isn't enough.

[Sam101]

Graham, you are responding to questions that are several years old. You might check the dates when they were started