ESA3 not correctly completed - now large OP

Hi

I have a client who has been in receipt of ESA since 2013 - he had worked for 30+years and now has a heart condition and cannot work.

Client claimed ESA in 2013 and was awarded ESA (c) but we don’t know if this was because he only completed that part of the form or because he declared his wife as working 29 hours and so could only get ESA(c).

In August 2014 client was sent an ESA3 form and this was completed but under the part about work for his partner client has ticked yes and no and then crossed them both through so in effect not answering the question at all. Wife has been declared as partner all through the form.

Client is awarded ESA (IR) and this continues to be paid until February 2016 when a Real Time Information data match comes in and shows wife is working and claimant now has pension (awarded Apr 15 but less then the threshold so does not affect claim).

ESA are saying that client failed to declare wife as working and he now has a £5k OP.

Within the appeal bundle client has been provided with Form ESA3 and that is how I know that both answers have been crossed through.

A local advice agency has told the client he has no chance of winning his appeal and to withdraw the appeal - client has refused.
I am not sure either way - if an important question such as work has not been answered should DWP have written for further info or are they fine to accept an incomplete form?

As an aside wife attended WFI in Jan 2015, during this interview she took in her wage slips and P60’s and obviously told them she was working 29hrs per week. (Interview had been changed by phone to non-working day). Do the local office have to report to the procession centre the outcome of the WFI?

I am considering asking for initial claim form as appeal bundle only says that claimant claimed ESA (C) but I am not sure if this true.

Any thoughts on likely outcome of appeal welcome.

Thanks

Not an expert on this but CPAG pg 1216 says that if give incorrect information in one document but correct in another in may not be a misrepresentation - given your client answered both yes and no it is possibly a similar situation - it makes reference to R(SB) 2/91 which it might be worth having a look at

Also presumably wife attended WFI because she was the partner on his ESA claim - in which case there is an argument that disclosed there too I think

And I would definitely ask for a copy of the original claim form - can’t think it would do any harm

I’d certainly argue OP not recoverable from the point in Jan 2015 when wife attended WFI and provided evidence of the work. Even if WFI was carried out by Maximus, A4E or similar (rather than at local JC with DWP staff) I’m sure they’re treated as ‘officials of the DWP’ (wasn’t there a discussion or decision relating to this fairly recently?)