Ive just taken on a permitted work case which causing abit of a headache.

My client claims Income Support and has been doing permitted work (higher level) for longer than the 52 weeks allowed, infact her permitted work permission should have run out in May 09!. I contacted the DWP and was informed by the Incapacity Benefit Section that they should have written to her before May to inform her that her permitted work was ending, he had a look on the Income Support Screen and saw that they had no end date on the permitted work and they had continued to accept her income details and pay her benefit.

Obviously there will be an overpayment from this but does my client have any grounds to appeal against recovery as the DWP appear to be accepting some responsibility for this?

Secondly to complicate matters, she works as a music tutor in term-time only so 3 blocks of 10 weeks a year. Currently they appear to be calculating her pay over a 52 week period which means although she earns around £80 a week, they have her pay as £45 a week. If she reduces her pay to £20 or below inline with the lower permitted work limit, will they again take her pay over the 52 week period so that even if she earns £40 a week they will consider that over the year it is less than £20 a week? IB section have said no but Im not convinced they are right.

On overpayment, yes, appeal if they try to recover - they may not. Usual considerations - did she misrepresent or fail to disclose a material fact? There is no trace of misrepresentation in the facts you give. Failure to disclose can only arise is she breached one of the requirements to disclose in reg.32, D+A Regs - broadly, if she was explicitly instructed to report something and didn't, or if she could reasonably have been expected to know that something needed reporting and didn't. If she was giving them income details as they came in, she committed neither offence.

I would be surprised if they tried to recover on these facts.

Richard Atkinson