Please could someone give me advice on the following:

Client is in receipt of Income Support. Included in the claim is his wife. Client goes on holiday to Pakistan for seven weeks. Wife stays here. Client does not inform DWP of change in circumstances.

Client returns and three months later is called to an interview. He admits that he failed to disclose he had gone to Pakistan.

DWP make a decision that the IS that he was paid for the first 4 weeks is not recoverable, however they want the all the money back that he was paid for the remaining three weeks.

Client has appealed and argued that the DWP should offset the amount of benefit his wife would have been awarded for living on her own during this period. DWP have rejected this and said that because she had not made a claim this cannot be allowed. Besides, offsetting is only done in "prosecution cases" according to them.

Is there any merit in the client's arguments?

I think paragraph 11 of Schedule 7 of the Income Support Regs is relevant. But, would she have to satisfy the conditions of IS? She was only included in her husband's claim as he was incapable of work. They have no children.

Please could someone advise?

Offsetting is not done in prosecution cases only - it should be done in all overpayment cases. Failure to use offset can be used an argument that the decision is technically flawed.

Whilst she may not have met the qualifying criteria for IS on her own she would have been able to claim JSA and as this is a benefit it could be offset against the overpayment.

You could always ask for them to provide the regs that say offset only for prosecution cases - that should confuse them!