ESA, capital limits and overpayment of benefit

Clt is on ESA (appears to be CB ESA and IR top up) with CTR and HB. He also gets DLA of unknown amount.

Clt went onto ESA two years ago, hasn’t worked since the mid 90’s so was presumably on IB, etc etc before moving over to ESA with Support component.

Clt was interviewed by DWP after it came to light that he had more savings than disclosed. Clt has been given an overpayment of ESA of a relatively small amount for having capital in excess of £16000 between mid 2013- feb 2016. His means-tested benefits have all stopped except CB ESA and DLA.

Clt has been given a civil penalty. Not seen paperwork yet. Clt seems to think because he was not aware of capital limits, he shouldn’t have to pay back the sum. As far as I know, clt still has capital enough to clear the debt in full.

Realistically, could clt argue that he didn’t know he was required to inform DWP, etc of change in capital? Clt is only vulnerable in the sense that he has depression and anxiety.

What’s the evidence that he was informed? I think the form the DWP includes in bundles is a sample INF4 plus possibly even something signed by the claimant..

Is it going on failure to disclose or misrepresentation? Has the o/p been correctly calculated? Has the overpayment been offset?

There must be a recoverable overpayment in order for it to be recovered,and it may not be recoverable if the claimant had not been told to declare capital over the threshold. There is a specific and a general duty to disclose. If he has clearly and unequivocally been told to declare capital in excess of the prescribed amount, I think he’s going to struggle to argue that he didn’t fail to disclose. If he has not, he might argue that he could not be reasonably expected to know that his benefit might be affected by the change, especially if his other benefits were not means-tested.

So, the game as I read it at present is as follows:

Interview - possibly under caution, possibly not. Transcript will reveal a level of staggering incompetence and numerous PACE breaches. It will not suggest fraud. Clt. will however mysteriously be offered a civil penalty as an alternative to a fraud prosecution when the IUC transcript contains not one shred of evidence of a failure to disclose let alone an actual fraud.

Client - accepts civil penalty because it initially feels as though they’ve got off lightly. Seeks advice because of a nagging feeling that something is not right. May be prompted to do so by the righteous anger of another who definitely feels something is rotten.

Appeal - paperwork relies on nothing more than the client having had an INF4. It sometimes even has a copy of the relevant INF4 or something similar and maybe even a print out of the “proof” that someone once pressed a button and this may have triggered someone stuffing an envelope that may have been posted and may have even arrived. No evidence of a failure to disclose. Appeal wins.

Putting aside all of my rather cynical viewpoint, totally borne out by recent cases, the key here is to look at what ESA IR began topping up. Was it when ESA started? Those are few and far between in my experience. Was it later and what was the claimant/appellant told then.

Bottom line with cases like this is that you always appeal because the case will be built on sand and DWP self-righteousness.

If your client has been receiving HB on basis of ESA-IR, they might also have a HB overpayment looming as well.

Based on personal observation: transfer from IB to ESA (if it successfully happens at all) is to cb-ESA. A form to apply for ir-ESA is sent separately with no info as to why.

The claimant for ir-ESA is asked exhaustively about capital. At least 15 different ways in which capital can be held are specifically asked about. All bank accounts must be listed with amounts at the time of application.

Capital is not relevant to IB.

so, if he made the separate, additional application for ir-ESA he will definitely have been asked about capital