ESA overpayment and prosecution

Hi, situation is:
Client gets irESA but also inherited some money and said nothing. As such this has caught up with her and she has been overpaid.
She was interviewed under caution, admitted she did not disclose the money (about £9k) and offered to pay the overpayment back in full (£4.1k). Doing this took her back under the £6k.
She paid this on 19th February HOWEVER DWP is still deducting £29 a week from her ongoing irESA, as if she still has the capital (but there is no mention of notional capital which would be wrong anyway). It would appear to be an admin error.
ESA was never stopped, just reduced by the recovery amount.

She and her advocate have tried all manner of letters and phone calls to no avail.

She was going to make a complaint but she has now had a letter stating the DWP are now considering prosecution.

She does not want to complain in case it pushes them prosecute her, but she is £29 a week down.

I’ve advised she needs legal advice about the possible prosecution, but not sure how to proceed with the £29 a week deduction, given she has tried many times to challenge this.
The bolshie side of me says to let them to continue recovery and wait until prosecution is going ahead or not. if it is, then use it as a demo on DWP incompetence causing undue stress etc.
If no prosecution, then no worries about complaining.
Maybe we just need to do a late mad recon…??
She is stuck between a rock and a hard place.

Any thoughts, thanks,
Elaine Henderson

*mand recon although a *mad one is probably more apt

If your client has repaid the overpaid amount in full, what is the possible benefit to the taxpayer of prosecuting her?

Or is it just malice and vindictiveness on the part of JCP?

Indeed. But as they are wrongfully recovering, maybe they don’t realise the overpayment has been paid back….
Hmmmm - need to check this out.

The late MR seems like a good idea - simply challenging the current level of tariff income being applied.  Supplying bank statements etc at first instance would help. A letter from the MP also works wonders. 

A late MR should not have any bearing on any intended prosecution as these different departments often in different parts of the country. 

With regards prosecution, the DWP may elect to or not.  Hopefully given the repayment they may see sense, factoring in costs of prosecution. 

If they elect to prosecute, your client may qualify for legal aid under the criminal legal aid franchise and may be able to get a criminal solicitor to write a letter to CPS inviting them to drop any intended prosecution. We were able to get the CPS to drop a prosecution when a client paid back 5k o/p in full and with the submission of medical evidence. In another case we proposed an admin penatly and this was agreed as an alternative to prosecution.

Good luck with the case

Manik Miah
Crystal Law Solicitors