I'm obviously very, very wrong here but can't work out how and why - please enlighten me?

Claimant does work which would be permitted work higher limit, but fails to tell the DWP he is doing the work.

DWP seeks to recover an overpayment, calculated by taking nil from the IB paid during the period the claimant worked.

If the failure to disclose had not occured, i.e. the claimant had told the DWP about his work, he would have been entitled to IB as normal since by definition the earnings from the work are below the earnings limit for IB.

Since, under SSAA 1992 s71(1), the amount of the overpayment is the IB that was paid less the IB that would have been paid if the failure to disclose had not occured, and these two amounts are the same, the DWP is entitled to recover nothing.

Assuming that the client had not been working for over 6 months I think my argument would be as follows. The regs say that an overpayment occurs if the claimant fails to disclose a "material fact". Somewhere in the back of my mind (and I'm sure that somebody out there has the reference to case law) is the definition that a material fact is one that would affect the amount of benefit the claimant is entitled to. As for 6 months you can earn uo to the permitted work limit with no effect on ICB there is no material fact to disclose therefore no failure to disclose. Your client I assume would have informed the DWP had he worked for longer than 6 months as then there would have been a material fact and discloure would have been needed.

I think the regulations do state that the claimant is required to notify the DWP that they are doing permitted work higher limit within 42 days of starting.

Their argument would be that failure to notify means that the work is not permitted work and it is therefore not exempt. If it's not exempt then it's just ordinary work and that reduces the amount of IB payable to nil.

As the notification is required to make the work exempt, wouldn't that make it a material fact? I'm open to convincing!

You're right. I jumped in without checking the regs.

Sorry if this is not relevant, but I have a similar appeal ongoing at the moment and I am attempting to argue that the requirements for notification discriminate against people with mental health problems under Art 1, 1st Protocol and Art 14 ECHR. My argument is basically that the requirements imposed on a person with mental health problems to enable them to keep hold of their property are more onerous than they are for people with physical health problems. In this case, my client forgot, or didn't realise that he had to tell them and, we will be arguing, this is due at least in part to his long term mental health problems. Reg 17 IFW regs is completely inflexible and we will be trying to argue for the reading of some flexibility into the regs.

I don't have the slightest hope of winning of course, but you have to try don't you.

Well the best of luck - will be very interested to know how you get on! Have been wondering myself for some time now about a HRA challenge on similar lines re. Incapacity Benefit and the 'different' (and more onerous) treatment of people with mental health problems under the All Work Test... but since the thought materialised keep winning appeals without having to get that far Anyone had similar thoughts?

Whoops! I meant, of course, the Personal Capability Assessment...

How are they more onerous? You do indeed have to try and I don't like to think there might be a hopeless argument I'm missing out on!

If you take an extreme example, a person with a very severe memory impairment - someone who forgets their conversation half way through what they are saying - will find it virtually impossible to comply with the requirement. Similarly, people with a lower degree of memory impairment or a learning disbility with have some difficulty with performing the task. A person with no cognitive impairment at all will have no significant difficulty in complying with the requirements.

If you turn it around, suppose they introduced a requirement that claimants undertaking permitted work WALK to the 5th floor of the local benefit office to disclose the work in person. This would clearly discriminate against many people with physical disabilities.

I realise that all notification may be prblematic for people with mental health problems, learning disabilities etc., but there is a measure of discretion in Reg 32 Claims and Payments that is not available in this case.

I don't deny that this is a long shot - particularly given the (lack of) evidence I have in this case, but I am convinced that the principle is sound.

They would presumably argue that there are provisions in place to assist someone with mental health problems so severe that they could not cope with the basic requirements of the benefit system (notification of changes of circumstances, etc) - namely appointee or PoA? And that although these are restrictions they are proportionate to their aim and not arbitrary.

Yes, I agree. However, in this case, my clients needs are not so severe that he requires, for example, an appointee. regarding the proportionality, I think the question must be whether it is proportional to create an overpayment of, say, two months benefit for a genuine mistake leading to a delay of two weeks of notification. I am only asking for a degree of discretion to be read into this provision and I would argue that the extremely restrictive wording of the regulation works against the Governments two aims of tackling disability discrimination and encouraging people back to work.

A discretion would entitled to the Secretary of State to weight the interests of the claimant against the interests of other contributors to the National Insurance fund in a way that he can't at the moment. This, would seem to be a more proportionate response to whatever their perceived problem with therapeutic work was.

Speaking as one who knows little, it seems to me the fault with this stance may be that you are arguing for (what seems to me to be) a very reasonable amount of discretion, but the argument that needs to be made is that what the Department is doing is *not* proportionate. Those arguments will be similar but not the same. They are the status quo.

Not being legally trained I'm not sure where the burden of demonstrating a case lies, but presumably it's on you as you would be the person bringing the action?

Have there been any HRA challenges that have argued, successfully or otherwise, against anything the DWP does in terms of targetting benefit fraud? In my (perhaps somewhat jaded) reading it seems that anything the state does which is about fighting crime gets through on a nod.

Goodluck Ian and let us all know how you get on

Just as I thought - we lost at Tribunal on Friday. Still, off to OSSC now.