I need help to get my head around this one. Client did some work for just over a year before disclosing it in Oct 2005. She earned over the PWHL some of the time: earnings varied dramatically. We challenged the decision and the DM has conceded that IB paid for the first 42 days is not recoverable, but has decided that, beyond that date, IB is recoverable for any day that she worked, irrespective of earnings. This appears to be in line with DMG Vol 3 09175 re reg 16(2) of the Incap for Work Regs.

R(IB) 4/05 concerns someone who never exceeded the PWHL and holds that nothing is recoverable for the first 26 weeks because IB was not paid as a consequence of failure to disclose ie it would have continued in payment if disclosure had been made. Does the same argument hold if earnings were below the limit only part of the time and can I argue that only the IB paid when earnings were above the limit are recoverable? To complicate matters, a permitted work period has been given from October 05 and any work within the limits has been accepted as permitted from that date. How does that square with the concession on the 42 days starting Sept 04 and the 26-week argument?

Hi Anned,

Im writing from home so am using memory only but i had a client who was on IS with DP for being incapable of work, just didn't have NI Conts for ICB, GP advised him to try to work. He did 6 hpw but failed to tell DWP. He has dyslexia so didn't have knowledge of Permitted Work. He had heard friends talk about 16hpw being relevant and so thought his 6hpw was fine and within the rules.

I.S found out, wrote to say whole period of time he worked was an overpayment. Interestingly, he stopped the work when DWP wrote to him and strangely his I.S continued without him having to reapply.I argued that if he had told them of his £30pw earnings a £20 disregard would have been applied thus reducing his I.S by just £10pw. Argument thrown out, i consulted LASA i think, or CPAG helpline, who said there was no lee way with the 42 day rule. Client MUST inform of work within that time or all benefit paid for a period during which he worked is an overpayment. He is now due up in court for benefit fraud as it was for over £2000.

Not sure if this helps but hope it does.

DWP Guidance has changed following R(IB)4/05 re recoverability only. They do not recover during the first 42 days because benefit would have continued to be paid during that period, whether or not he reported the work, so no benefit has been paid which would not have been paid if he had reported that he was working. They also accept the same argument for up to 26 weeks if the PWHL is not exceeded. The DM in my case consulted higher powers about what happens if it has been exceeded on some weeks during the 26 weeks but not others. The answer was that it is no longer treated as PW and so IB is recoverable for the remaining 20 weeks.

I am challenging this, with the DM's approval, on the grounds that only benefit which would not otherwise have been paid is recoverable, using as an example the fact that, if someone was doing reported permitted work now, benefit would be stopped only for weeks they earned more the the PWHL. CIB/4174/2003 appears to back this up, because it concerns the computation of earnings: the Commissioner found that the limit was exceeded on some weeks but not on others.

I am using this argument for recoverability of IB, but I haven't had a case where IS was in payment. I would have though that, as he was below the PWHL, the 26-week argument should apply and only the amount of IS payable during that time would be at issue. After 26 weeks he would not be entitled to IS on grounds of incapacity for work only.

In your case, it seems the decision is purely that he is no longer incapable of work, so not entitled to IS. If he would have qualified for IS anyway (eg has DLA) I would agree that the overpayment should be only the £10 per week for the whole period, using underlying entitlement rules when calculating the overpayment.

Anned So are you saying that if no benefit has been paid which would otherwise not have been paid if he had reported that he was working then there is no overpayment. Actually the double negatives makes this sentence confusing…. What I am saying is that if he had reported it and if it would have made no difference to his benefit entitlement then there is no overpayment. The reason for seeking clarification is that I have a cl on IB/DLA who works voluntarily for 3 hrs per week for a charity ( as recommended by GP to maintain mental health and social contact) with no pay (just travel expense) for over a year but has not reported to DWP and does not wish to do so despite our advise. Therefore, if the DWP is now informed of this or finds out otherwise then there will unlikely be an O/P (everything else being equal i.e. healthwise..as for DLA doing work is not reportable as long as there have been no change in the disability/health) and am I correct in that in this case the time limit does not apply as there was no payment for the voluntary work?

Voluntary work is treated differently from permitted work. You are allowed to do work for expenses only and still be entitled to IS. There is a chance that, if the DWP does not agree that it is reasonable to give your services free of charge, they can treat you as having notional income. I think this is unlikely in your client's case. The DWP should, however, be informed.
Disability Rights Handbook page 93 has more on this.

Sorry, forgot to answer the main point of your question. Yes, I mean that there is no recoverable overpayement if benefit would have continued to be paid if the DWP had known that he was working.

Might be a bit late for your client, but did they not consider treating him as a disabled worker. The only problem is that he would not get the DP or higher disregard but the overpayment would only be the amount of his earnings less any applicable disregards, not the full amoutn of IS.