Im representing a client who did some sporadic work over 2years as a face painter whilst claiming IB and has consequently been overpaid. Other than the fact that she worked there is no suggestion that she wouldn't have satisfied the conditions of entitlement on medical grounds. The work does not appear to fall in any of the exempt categories.

The DWP are saying that she was self-employed from the first date she worked and threfore overpaid for the whole of the period in question. Their submission is brief to say the least but they seem to be relying on the fact that she had public liability insurance and used headed paper (produced on her own computer) to send out letters to various people who made enquiries. She was not registered for tax. I hope to argue that the DWP have missapplied reg 16(1) of the Incap for Work regs and that she should only be treated as fit duirng the weeks she actually did the face painting work, which would substantially reduce the overpayment. Has anyone got any ideas or experience of how to argue that she was not self-employed for the whole period? I couldn't find any caselaw on this and the DMs guide not v helpful either. I also intend to argue that the work was minimal and should be ignored altogether...but I'm not convinced that will be accepted so reg 16 is the next best!

I agree with you. The reg is clear that it is the work in EACH week that must be considered. There is some guidance and a review of the caselaw regarding minimal work in the commentary to reg 16 of Bonner.

The fact that the work was done on a self-employed basis is totally irrelevant. Otherwise, all self-employed people on IB have, are and will be incurring overpayments.

Thanks, that gives me a bit more confidence...wasn't sure if I was missing something blindingly obvious!

You may also find R(IB)4/05 useful. This held that some of the 'overpayment' was not recoverable because even if the claimant had notified the DWP of the work in question, he would have still been entitled to it under exempt work rules.

If it was IS rather than IB that claimant was actually getting (or if there was an IS top up) then you could argue that client even though not incapable of work during the weeks she worked was still entitled to IS as a disabled worker.

Hi, please dont rely on these anecdotes, but for what they're worth..

I had a simmilar case where a client did some part time work for a short period about 4 years ago. the work broke his incapacity for work, so he was deemed capable of work from the date the work commenced.
unfortunately, due to the facts of the case, I was unable to argue that the work should be treated as (at the time) therapeutic work, which would have meant it would not have broken incapacity for work.

the offsetting bit only applies when there is a subsequent determination for the period, and it was not possible to backdate for the whole 4 years.
the client had to repay £25k IB, the best I could do was to ask for a write off.

I had another simillar case,
client did casual bar work over a period, DWP found out and classed her as capable of work from day employment started

the work was less than £20pw and could be classed lower limit permitted work, LLPW only has to be notified before it comes to an end.
I won the appeal by arguing that the employment contract never ended and was still valid at the date of the appeal - the employer never wrote to dismiss her.

could this be simillar to your client?, maybe she is still engaged in her self employment.

but why did she get insurance, but not register with IR as SE, is there a good explanation, or will you be helping her with tax issues also!