ESA Overpayment

It’s my first post…be gentle !
Client unfit for work so claims ESA from 28/12/2009, receives letter in July stating he has overpayment of ESA from 28/12/2009 to 21/05/2010.
it appears he was self employed and set up a Limited Company with his (ex) partner with him as Director and employee. When he became unfit for work he should have claimed SSP from HMRC and not ESA, Due to his illnesss his company went insolvent, There were no assets.
Are there any grounds for appeal here.

thanks in advance
.

Tony, presumably there is a failure to disclose or declare at the time of his ESA claim that he was an employee? It may very well be that he really did not know so could not declare it - most people are very hazy about the different ways of running a business and their legal consequences. But misrepresentation doesn’t require knowledge of the relevant material fact.

I really can’t imagine why so many little businesses get themselves transformed into limited companies. The tax advantages, such as they used to be, are now negligible and the complications horrendous. I blame the accountants.

Just a couple of idle thoughts….

Did the company trade at all?  If not, it may be arguable the setting up of the company made no material difference to the circumstances.  It is also quite possible to claim ESA whilst being an “employee”.  In turn, depending on all the facts, it may be further arguable that if the change(s) in circs didn’t affect benefit, there was in any case no duty to disclose the change(s).

My client advised he declared everything when he put in the ESA claim, his company wasn’t insolvent at that time, not sure if that matters or not.
The overpayment letter states ‘The overpayment occured because on 28/12/2009 your circumstances changed and the office that paid your benefit was not told at the correct time about the entitlement to another benefit stopping in respect of yourself or one of your dependants’. !!

Thanks for the replies

S2uABZ - 04 August 2010 09:55 AM

My client advised he declared everything when he put in the ESA claim,

Was your client’s claim made by telephone? If so, I would be demanding that a full recording of the telephone claim is provided, along with recordings of any/all subsequent telephone calls.  Why so?  Simple.  I can testify from first hand experience that the answers recorded on the “Customer Statement” from a telephone call by the DWP do not necessarily reflect the actual answers given by a claimant within the telephone call.  If your client did indeed disclose everything, the telephone recording will be clear evidence of this.

In anticipation of the DWP refusing to provide the telephone recording, I would unhesitatingly ask the FtT to urgently issue a direction to the DWP requiring the recording to be produced.