It's Friday and my brain's stopped working properly - probably thanks to this case:

An elderly client has asked for help with an Incapacity Benefit overpayment. Turns out that its one IB overpayment, 3 Income Support overpayments, 2 Pension Credit overpayments and a Housing and Council Tax overpayment.

The client was in reciept of Incapacity Benefit (with some protected Invalidity Allowance). This was topped up with IS initially, and then PC when he turned 60. He worked for various periods between 2002 and 2006, with earnings varying from £4.20 per week to £220. The job was seasonal (pot-washing in a pub) so there were long gaps with no earnings at all.

I'm waiting to get copies of all the calculations and decisions. I've got a copy of the IB calculation, and it worries me because they've calculated it using part weeks. I thought that if you worked for one day during the week you were classed as capable for work for the entire week and so the full week would have been overpaid.

I've won quite a few cases recently where the overpayment wasn't recoverable but the DWP hadn't satisfied the conditions of Section 71 of the SSA - they hadn't properly superseded or revised the original decision(s). Given the number of decisions that would be involved in this case I would be fairly certain that the DM won't have done the job properly - but if they've undercalculated it would be a big risk to take.

Any pointers on the calculation of overpayments for both IB and IS where a person has been working would be really useful - particularly how the lower and higher earning limits could be used for offsetting.

I've not got access to old CPAGs, so I can't check the transitional arrangements for Invalidity Benefit to see if this will affect anything. I also can't seem to find all of the permitted work higher limits for the years in question.

Thanks

I've got a couple of pointers:

1) for any periods where your client is not incapable of work, then ALL benefit paid on that basis will be overpaid - except in the case of IS if you can show the client met another condition of entitlement (e.g. carer, disabled worker, etc) (R(IS)10/05 - on rightsnet);

2) When considering if the work could be permitted or therapeutic, remember that the rules changed in 2006. An important change was the removal of the requirement to notify the DWP before starting the work.

On leave now (yay!!) so can't post more - GL!

Tony

Jaykay

I was interested in your comment about failure by the DWP to carry out a proper revision/ supersession with overpayment cases - can you give some examples?

Thanks

We've got the old CPAGs if you need stuff faxed.

The basic rule is that before they can recover an overpayment, there has to be a decision which disqualifies the claimant from benefit for the relevant period first. This will be a revision, if the decision is thought to have been wrong all along, or a supersession if it was right initially but there was a change of circumstances which is thought to ahve meant it was no longer right. This is section 71(5A) of the Social Security Administration Act.

Where the decision is on a current claim, it can be easy to show that there must have been a revision/supersession because benefit payment stops suddenly. Where it is for a past period the revision/supersession can't be inferred like this. To be valid, the decision needs to state that it is disallowing benefit for the past period, say why (ie explain in this case that the person no longer qualifies for the benefit because he is conclusively deemed to have been capable of work whatever the facts of his disability are, because he was doing the wrong sort of work, and if it's IS rather than IB he didn't qualify by any other route such as disabled worker which is often worth a twirl anyway).
It must identify and reverse the decision awarding benefit and if there are several of them, because of renewals, must identify and revise/supersede every single one. If there is no adequate proof that this has been done - and a bare assertion in the subs if it goes to appeal isn't proof - then any overpayment, even if there has been one, is irrecoverable.

Sorry for the late reply to your post, but is it not the case that the Tribunal can correct a defective ( or non existant ) supersession/ revision decision. or adjourn and invite the DWP to carry out a proper supersession/ revision?

Thu 07-Aug-08 02:10 PM by shawn

R(IB)2/04, held, inter alia: -

“whilst there may be decisions which have so little coherence or connection to legal powers that they do not amount to decisions under sections 9 or 10 of the Act at all (and a decision however defectively expressed should generally be regarded as made under section 9 if it alters the original decision as from the effective date of that decision and as made under section 10 if it alters it from some later date), if an appeal tribunal finds that a decision has been made under section 9 or 10 of the Act it has jurisdiction to make the decision which the Secretary of State should have made (thereby remedying any defects in the decision whether properly regarded as defects of form or substance) and should not simply set such a decision aside as invalid or "inept" (agreeing with the decision in CSIB/1266/2000 and disagreeing with that in CSIB/1268/2000) (paragraphs 72–80, and 192)"

The commissioners state that where there has been no section 9 or 10 decision, or there has been a decision but which is so inept that it “has no connection to any legal power” then the tribunal should bounce it back to the DWP to start again but where there has been a section 9 or 10 decision, whether defective in form or substance, then the tribunal has the power to correct those defects itself and should give proper consideration to do so.

So in practical terms what benefit can a faulty supersession or lack of one be when trying to defend overpayment recovery?
The last time that I managed to use this was some years ago with a large overpayment - case was adjourned by the Tribunal as the DWP's casepapers were all over the place - when it came back they had still not got their act together so the Chair quite rightly ruled against them rather than correct their faulty decisions, but this was only as he had given them a chance to sort it out and they blew it. Since then I haven't had another case like this, which was why I was interested in Jaykay's comment.

Yes, the tribunal of commissioners' decision means that the old days of getting tribunals to kick o/p cases out on the basis of defective reviews/supersessions (where many would eventually die a death because of mising paperwork in the DWP, etc) are well and truly over.

Oh what happy days they were!

I've still been having success with these cases, even since the Comms decision. The DWP's 'decisions' have been so defective that the tribunal does not feel able to correct them. I've had two cases in the last 6 months - each with overpayments of £20,000+, both of which were not recoverable.

Where the only issue is a decision being referred to as a supersession when in fact it is a revision, I think that any tribunal will simply correct it. However often there is no actual decision that has been made, just determinations - and in many cases where an overpayment has been made over several years only the first operant decision is identified. It is difficult for the tribunal to identify what other operant decisions need to be revised or superseded as they don't have access to all the paperwork.

Of course the DWP can issue new decisions, however they have not done this in either of my cases, and other representatives I've spoken to have told me that they've never known the DWP issue new decisions once they've lost an appeal.