We have a client who has claimed IS from 1994, and stopped being entitled in Sept 1997 when she gained her refugee status (as she could now be available for work) but failed to disclose...
In 1999 she gained employment and notified IS.

They are seeking to recover an overpayment of £4000+, and when she came in to see us she was already out of time to appeal/revise...

Is it possible to offset the amount of JSA she could have claimed if she had understood.
We are out of our depth...
CPAG is clear about the need to claim JSA correctly on the JSA, and the client obviously does not have proof of her seeking work, but the info on offsetting is very unclear.

Thankyou very much if you have any help.

Victoria

You need to read the annotations to reg 13 of the payments on account and overpayment regs.

My reading has always been, according to the qouted CD's on the matter, is that overpayments of IS cannot be offset by potential entitlement to JSA if no claim for JSA was ever made, and, vice versa.

Interestingly though is the comment (qouted) by the commissioner in CIS/2291/2001 which states, at para 18 "regulation 13 does not contain any discretion. That rests with the Secretary of State in deciding whether and how to collect any overpayment. No doubt the Secretary of State will take into account whether the public purse has in reality lost the sum claimed as overpaid or some other amount".

Thus you could always try to argue that the public purse has not suffered because your client would have received the same amount of benefit anyway but merely a different one and ask the department not to recover. Note that a tribunal has no jusisdiction to decide the point.

However, the department may argue that if she had claimed JSA then she might not have been on that benefit as long as on IS as the departments efforts (or co-ercion depending on your point of view) would have found/pushed her into finding work at some point.

Regards

Paul

Thanks Paul.
That matches with the rules about what needs to be in place to have a JSA claim.
In that case I'm thinking that the letter asking them to show discretion not to recover would go with the argument above, and an emphasis that she did look for work and find it (and leave the benefit) along with anything she did to prepare for that (english courses? etc)... though it is a long shot.

I am confused by the regs. though, particularly -
"but which would have been determined to be payable -
<...>
ii)on the basis of the claim as it would have appeared had the misrepresentation or non disclosure been remedied before determination."

What would have to happen for that to apply ?
(Sorry, but you give us one good piece of advice, and we just ask for more)
Victoria.

One example would be where CA was not declared on the claim form. Ther recoverable amount would be the total amount of IS equal to the relevant amount of CA offset by the amount of carers premium as would have been paid if the CA had been declared i the first place.

In other words the original claim if the CA had been declared would have appeared to have the CP calculated in the applicable amount from the outset.

Clear as mud!

Paul

thankyou very much for your help.
We will stick to throwing ourselves (or our client) at their mercy and begging, and I guess it will all help when we beg them again to recover at reduced rate...
Has anyone known them ACTUALLY to use their discretion not to recover ?

I'm also wondering (as above) whether any LA has agreed to waive recovery of o/p's ? I've two current cases where LA have refused but DWP are considering - which is a bit odd when the LA usually go along with everything the DWP decide. I've discussed with a barrister and in his opinion I need to try to build a complete case so I'm in midst of this, including requesting LA provide complete HB file including an interview notes etc. If I get anywhere I'll post it here.
Sue

Just ignore me - this is is the wrong forum so I'll post it in HB one - but then again it does partially answer the query so I'll let you know if I get any joy from DWP. They've already said they're considering it and want client's income and expenditure details which have recently been submitted.