Registered blind client on IB did sessional work at a college from 07/2002-06/2004, and 09/2004-02/2005. Did not inform JC+ of work until 11/2004 during t/c about another matter. His IB was suspended in 02/05, and he got a decision dated 13 October 05 saying he's not entitled to IB from July 2002 as "the work done does not fall within the permitted limits". (Cl. has requested full reasons.)

Cl. has supplied copies of pay slips covering various periods. Most do not give details of hours worked in specific weeks e.g. one slip covers a 9 month period, but there are some payslips covering a week or fortnight. Cl. is unable to remember details of work done in different weeks, and says that the college doesn't have these records. There doesn't seem to have been a set pattern of working hours but the cl. says he rarely did more than a few hours - adamant that most(?) weeks his earnings and hours were low enough to meet PW higher limit rules, and that the DM does not have the evidence to justify stopping his benefit.

On the face of it cl. is outside permitted work rules for failure to inform JC+ of PW within required period, and he did not have permission to extend the PW beyond 26 weeks.

1. Taking averages from the payslips it looks unlikely that his hours and earnings did exceed the PW limits - what chance a DM or appeal tribunal would accept averages without explicit evidence of earnings/hours in some periods?
2. Does a DM or appeal tribunal have the legal scope to apply the PW rules retrospectively, if we can convince them he fell within the limits? And could they apply them for a 52 week period (i.e. extension of initial 26 week period to further 26 weeks)?
3. Can we challenge the decision to end his award, rather than just suspend it for the weeks when he did work JC+ say was not allowed under I for W rules, especially as he has not worked since February?

Any thoughts, ideas or useful experience welcome. Charlie

I have tried and failed to get the period for notifying the department of permitted work extended but it may be possible to avoid recovery of at least some of the overpayment that is likely to result.

The resulting overpayment is not caused by a failure to disclose because the department would have paid the money even if he had disclosed his intention. There has therefore been no loss to the department. Have a look at s 71 (1) SSAA - "...in consequence of a misrepresentation or failure to disclose...".

He should now be able to claim IB and do permitted work from scratch - or from 6 weeks before they found out. The previous periods of permitted work will not have been permitted work so will not link with the new period. The only problem is whether he now satisfies the contribution conditions. The periods when his earnings were in excess of the earnings limit will probably be recoverable (technicalities permitting).

I tried to argue before that the notification requirements were discriminatory (Art 14 and Art 1 Protocol 1) therefore requiring an extension of the time limits. That case concerned a person with mental health problems. It might be easier to argue with a person with a visual impairment - or not.

Thanks Ian. I've avoided thinking about the o/p's as yet!

Someone else must have an opinion/experience?

CIB1985/04 by Commissioner Howell may help stop any recovery of an O/p it reinstates CIB 3925/03 irrespective of the outcome of the HoL decision concerning CIS 4348/03 and Reasonableness.

Fri 02-Dec-05 01:06 PM by shawn

I have just been passed a similar case to the one discussed here. I have yet to establish exactly what information my client was given about disclosing work done when he claimed Incapacity Benefit in 2003, but I think we have a case for non-recovery of at least part of the overpayment on the grounds that non-disclosure was not the cause of the overpayment (s 71(1) SSAA). If I wanted to also run the argument on disclosure not to be expected because of the information he was given on PW, am I right to assume that I should ask for the case not to be heard until after the Court of Appeal decision on CIS/4348/2003?

The case you refer to has been heard by the Court of Appeal (B v Sec of State for DWP). You will be waiting for the House of Lords decision....

Reg 17 of the Incapacity for Work Regs describes all the forms of permitted work (except volunteering or sitting as a wing member in appeals) as "work in respect of which the required notice is given" (at 17(1)(a)).

"the required notice" is "in relation to work referred to in any of the heads (i) to (iv) of paragraph (a), notice to the effect that the person is undertaking, or is about to undertake the work, given in writing to the Secretary of State by that person or another person acting on his behalf-
(a) in the case of work referred to in paragraph 1(a)(i) to (iii), at any time before the person ceases to undertake the work;
(b) in the case of work referred to in paragraph (a)(iv), no later than the period of 42 days which begin with the day on which the work begins"

CIB/760/2005 is useful- in that case the claimant gave notice effectively during a fraud interview and then stopped work. His work was held to be done with the required notice as it was given before he stopped working.

Hope that helps.