HELP! i have just been asked to rep someone tomorrow. the woman is being asked to repay £18,000 IS. she had claimed as a single parent. but her husband (who is very ill and abusive) returned to the house about two years ago. he lives seperately from her in another part of the house. she is asian and the stigma of being a single parent was affecting her daughters marriage plans. she did not declare he lived there until she did a new form earlier this year.

he claimed no beneifts at all. he was not working and had nil income.

in money terms, the failure to declare his presence in the house is an UNDERPAYMENT --since they got less money than if he had been on the form!

however, they will argue she should have claimed JSA. but as he is not capable of looking after the kids and is sick, i don't think they can argue this. she proably could have claimed ICA in fact as well. she also suffers from depression (but i am unclear as to when the diagnosis was made of this)

can anyone help with any precidents on this?

i am planning to challenge the overpayment decision, since the legislation says that the false declaration must lead to an overpayment of IS. and i feel that IS was the right benefit to claim and she was underpaid

any ideas?
thanks

Overpayment regs state that when an o/p is calculated the correct amount of benefit which should have been paid should be deducted, which in your case would wipe out the alleged o/p (and indeed create an underpayment). If it were said that your client should have claimed JSA instead then this should still be offset. However if your client is sick arguably she could still have claimed IS.

Another avenue would be to dispute the fact that your client and her husband are living together as a couple. You could argue that they are leading separate lives under the same roof, though this can be tricky to prove.

A tribunal would also want to know how your client's husband supported himself if he had nil income. This point would obviously be relevant to both of the above arguements.

thanks

they are leading seperate lives, but he still should have been included on the form in the relevant part, so that is not the issue.

she supported him from the IS she recieved (part of the issue was that when he is the claimant he keeps all the money)

can you give me the reg i need to use to argue that the correct amount of benefit which shoild be paid is deducted?
elane

An o/p is recoverable if it arose as a result of a failure to disclose a 'material fact'. A 'material fact' is one which is relevant to the amount of benefit which is payable. So if your client is saying that her and her husband are not living together as a 'couple', then his presence in the household should not affect the amount of IS payable to her a single parent. Thus there is no 'material fact' requiring disclosure.

The offsetting reg. is the Social Security (Payments on account) Regs 1988 Reg 13 (b) (ii). (Rowland pg 707, which also contains some useful commentary). I read this wrong initially and it seems that any JSA which would have been payable cannot be offset against an IS o/p and vice versa. So you would need to argue that IS would have been payable to them as a couple, which you should be able to do okay given the circumstances you have described (though you may need to provide the tribunal with proof of sickness).

It does seem absurd that 2 people, whether as a couple or 2 single people, who have been living on less than the minimum benefit level, are now being asked to repay the benefit they did receive!!! Hopefully in light of this, the tribunal will be sympathetic.

Good luck, would be interested to hear how you get on.

Sara.

A false declaration may not necessarily lead to an overpayment of IS, particularly if it can be shown that the man is sick.

Reg 13 of the SS(POAR) regs 1988 states:

13. In calculating the amounts recoverable under section 53(1) of the Act or regulation 11, where there has been an overpayment of benefit, the adjudicating authority shall deduct-

(a) any amount which has been offset under Part III;

(b) any additional amount of income support which was not payable under the original, or any other, determination, but which should have been determined to be payable-

(i) on the basis of the claim as presented to the adjudicating authority, or

(ii) on the basis of the claim as it would have appeared had the misrepresentation or non-disclosure been remedied before the determination;

but no other deduction shall be made in respect of any other entitlement to benefit which may be, or might have been, determined to exist.

You do not say whether or not the IS claim invloved housing costs, and who was liable for them. If no housing costs are involved, then I would be tempted to argue that the Decsision Maker has not proved living together as husband and wife as the man maintained a seperate household. If housing costs are invloved, then you may still be able to argue that the man does not normally reside with your client and is not a non dependant.

At this late stage, I would ask for a postponment to enable you to prepare your submission

many thanks. that reg was just what i needed. postponement is not possible. there are no housing costs involved and i think it is fairly straightforward now--the full overpayment is offset against the actual amount of benefit they were entitled to which would have been higher by several thousand pounds!!
elane

it isn;t possible to get this appeal postponed. however there has never been a LT decision. the overpaymetn results from a failure to disclose a relevant fact--the husband moving back into the address. as far as i understand the regs, the amount if offsettable..will let you all know hoe it turns out tomorrow! thansk for all the help
elane

we won the appeal today. the adjudicator decided that they did not maintain a common household during the period concerned even though they now do so(which rather surprised me) and also determined that nil of overpayment should be recovered since the family would have been paid more had the husband been included on the forms.