I have a client who asked, when she started maternity leave, whether her in-work credit would stop. Of course there are no regulations, but we advised her to tell the DWP for the avoidance of doubt. She did so, nothing happened, then when her baby was born they stopped her credit and asked her for a repayment of all in-work credit paid from the start of her ML!

This seems wrong to me on many levels: first of all, because she informed them (so o/p not recoverable apart from those sneaky common law provisions they like to use?); secondly, is there in fact an overpayment at all. She is still employed, albeit on ML, and in fact her income is of course lower (as on SMP), so why can her in-work credit not run until the year is up?

Again in the absence of regs there's nothing to say how in-work credit operates in these circumstances. Any guidance? Also, does anyone know how I can access a copy of the in-work credit application form? The client doesn't have a copy, so I don't know exactly what obligations are stated there.

Then there's the fact that there's no clear right of appeal... anyway, for now I am advising that I don't think it's repayable, but we don't have much to go on. Any tips helpful!

Not sure about the in work credit provisions but a claim for restitution throught the civil courts can be defeated if she honestly and genuinely believed she was entitled to the money and has spent it. These are essentially questions of fact for the court to decide.

I think in-work credit is payable byway of the Employment and Training Act 1973, section 2 ETA 1973

On the wording of subsection 1, I would say that your client has a case to argue against recovery - "The Secretary of State shall make such arrangements as he considers appropriate for the purpose of assisting persons to select, train for, obtain and retain employment suitable for their ages and capacities or of assisting persons to obtain suitable employees (including partners and other business associates)." (my emphasis) - if she argues that the payment helps her to retain her employment status whilst taking maternity leave. Notwithstanding your other points about disclosure and so on which should also mitigate against recovery in my opinion.

Thanks both for your points. Yes, I found the Employment and Training Act section - any other detail is, as far as I can tell, on the hoof policy, although I did find something else in a DWP research document which summarised the rules and says the credit is not payable if the claimant stops working for more than 5 weeks.

However, I'm currently thinking along the same lines as Paul (ie the payment helps her to stay in work, she is more likely to go back after ML if her income is topped up etc), plus a sex discrimination argument -only women go on ML, doubt that stopping payment during this period can be justified discrimination etc. I reckon that might work!