Overpayment of ESA recoverd from arrears of SDP following PIP Appeal

I have someone who is in the Support Group for ESA and was getting PIP.  Following a PIP review DWP decided no longer entitled to PIP so they lost SDP on ESA.  We appealed PIP decision and won so now entitled to arrears of SDP.  Letter received from DWP notifying SDP now reinstated but whole of arrears due have been used to recover overpayment.  Overpayment occurred due to failing to declare work some years ago.  Can they recover the whole of the SDP.  If PIP had not been refused they would have continued to get SDP so they have now lost out on many weeks of entitlement.  Overpayment is being recovered from weekly entitlement of ESA.

In short, yes they can. See p.1222 CPAG 2016/17, “Overpayments can also be recovered from arrears of benefit you are owed except arrears of a benefit that has been suspended.”

The reference to suspension of benefit, under reg.16(3) Social Security (Payments, Overpayments & Recovery) Regs 1998, is specifically in respect of suspension under reg20 of the SS&CS; (Deciisions and Appeals) Regs 1999. This does, I think, however, give a possible ground to challenge the recovery.

Reg.20 applies to suspensions made under regs 16 and 17 of the C&P regs and reg.16 in particular gives some grounds for argument.Reg.16(1) allows for suspension of part, or all, of a particular benefit under prescribed circumstances contained in para.3.

Reg.16(3)(i) allows suspension where an issue arises as to whether entitlement condition are satisfied, which is clearly the case here, as payment of SDP which depends on PIP entitlement amongst other conditions had a question against it. I think it’s a tenable argument that payment of the component was effectively suspended whilst the PIP appeal was dealt with and has now been reinstated.

What does anyone else think?

Thank you for your response Paul.  This was the bit of legislation I was looking at and could not decide whether this would count as a suspension or not.  It just seems a bit unfair that if PIP had not been stopped then SDP would have continued.  I will re-read the legislation before I decide what to do.  We did not have to re-apply for SDP it was automatically reinstated.

I’m not so sure given the principle of finality of decisions (s. 17 SSA).....

Removal and resinstatement of a premium does require an actual decision on entitlement, whilst suspension does not - e.g. where payment is suspended whilst entitlement is investigated (suspected excess capaital or LTHAW, for example). And that is why there’s no right of revision or appeal in ‘true’ suspension cases. What if the claimant hadn’t appealed the PIP decision or the appeal was disallowed?

Yes, very good point