Clt is heroin addict who had been on IS on grounds of incapacity (credits only so no IB) since Dec 2004.

He started work 3 April 2006 doing a few hours per week tele-sales. He worked most weeks – though there were some gaps – through to Sept 07. Most weeks he worked he appeared to earn less than the appropriate applicable amount.

Has appealed decision that he must repay all of the IS paid since 3 Apr 06 – he accepts he has failed to disclose but feels peeved he must repay for weeks where he wasn’t working.

Can he argue his PIW is from Dec 04 and that he can pop back in and out of this period in the weeks he didn’t work?

Or can he argue that he is a disabled worker? His whole angle is that his addiction means he can’t hold down full-time work and the tele-sales was an opportunity for him to work when he could and take time off when he needed it.

What evidence might be required if this is a runner? DMG (20497) suggests ‘the persons own evidence of reduced earnings or hours should normally be accepted.’

Ta.

Certainly this possibility should always be considered in such cases. You would also need to work out how to deal with the fluctuating earnings, granted the general unsuitability of the benefits system to deal with frequent changes.

I don’t think that the tribunal has any jurisdiction to consider any of that as the entitlement decision has not been appealed and the entitlement decision is, therefore, not before it. The tribunal’s remit is to determine a) has there been an overpayment?: b) if so, is that overpayment recoverable?: and c) if yes, is there any room for offset under regulation 13 of The Payment of Account, etc Regulations?

The claimant needs to appeal the entitlement decision using R(IS) 10/05 which states that where a person is no longer entitled to Income Support because he starts work and is thus no longer incapable of work then the decision maker should go on to consider whether he falls to be classed as a disabled worker. Then request that the overpayment appeal be stayed until the two appeals can be heard together with the entitlement decision being heard first.

As for evidence, it is always a good idea to get supportive medical evidence from doctors, other qualified professionals or outreach/support workers.

Oops.
Has there even BEEN a supersession decision? Never forget section 71(5A) of the Adminstration Act.
IF there is no clear evidence of supersession and you spoke nicely to a Tribunal they might just chuck it out, or if the appeal was still within time of a supersession decision treat it as an appeal against both decisions.
A Tribunal hearing a recoverability case is not bound by the decision of an earlier Tribunal on entitlement, so they woudl probably want to be sure of this point anyway.

Mon 03-Aug-09 09:57 AM by Don C

Thanks for your comments.

The bundle includes a supersession of the original award of incapacity credits (and 'every decision' thereafter) on 4 Jan 08 and then a rather garbled IS entitlement 'revision' (based on the incap decision) which concludes...'no entitlement to IB credits for these periods and therefore no condition of entitlement to IS'. This decision is dated 8 Jan 08.

There is then an 'overpayment decision' dated 25 Jan 08 referring to the decision dated 10 Jan 08 (of which of course there is no sign). This states OP of IS because clt failed to disclose work.

Clt's late appeal was admitted on 29 Jan 09(!).

Can't tribunal just tidy up the possibly defective 'revision' decision?

And is it not open to the Tribunal to consider alernative eligibility as the IS entitlement decision is before them? Clearly there would be weeks where his income exceeds but it would at least reduce the OP.

What is the nature of the appeal? In my experience if an appeal nominally against a recoverability decision is visibly about the removal of entitlement (" don't think I ought to have to pay this because I am ill and my doctor says"etc) a tribunal will usually be happy to take the appeal on the basis of what the appellant thinks he is appealing about, not what the DM thinks he is appealing about.

He appeals against the amount he has to repay and states there were periods where he didn't work or worked few hours and that's about it.

In the IUC he does explain that he could not hold down a full time job because of his addiction.

I think I'll talk to him about getting some medical evidence from his GP and see where we get....

Just to let you know appeal suceeded on 'disabled worker' grounds. Pinged back to JCP to recaculate OP.

Many thanks for the help.

And so I should damn well hope.