We're now on a third adjournment with next appeal hearing on Monday.

Client overpaid IS because found working. This has already been through court when client pleaded guilty to o/p of £3K rather than the £16K original amount.

Appealing on grounds client never made aware about permitted work after work had been initially accepted as therapeutic. I'm using Hooper.

Has kept being adjourned for SoS to get act together. Various directions from Chair including get a decision done on the actual IB. This arrived only this morning.

This is (was) to be heard on Monday and I've now been phoned by TS as they've just had fax from DWP to say they've reduced the period of o/p. I realise this means a lesser o/p and appeal lapses and we have to start the whole thing again.

I consider it extremely unreasonable that they can keep getting their own way. Is there anything I can put to the Chair to say tell them to sod off and decide in favour of my client ?

Not being a lawyer, I'm not entirely sure as to the manner in which this suggestion could be pursued, but....

Is there any wriggle room for making an argument as to "abuse of process"?

Just had another thought... As the calculation is as the behest of the Chair, isn't it for the reconvened Tribunal to make the DECISION; the DWP's role being purely administrative in this situation? In other words, does the DWP have the legal status to be the decider in respect of a matter that is ALREADY at Tribunal - this being distinguished from a decision made by the DWP before a Tribunal sits in the first place?

Thank you thank you I'm gonna roll with it. Cut, paste, fiddle about a bit and fax to TS!! Hope you don't mind a bit of plagiarism
Kevin

I am now feverishly consulting the Copyright, Designs and Patents Act 1988......

www.opsi.gov.uk/acts/acts1988/Ukpga_19880048_en_1.htm

Oooops - you'll have to sue me Kevin. I added it to my secondary written submission which I faxed to TS on Friday.

I had a call from TS late Friday to say this morning's hearing adjourned but it will probably lapse now the DWP changed the period of overpayment.

Now I'm in another quandry. I've now asked the TS to make the decision on this appeal but it probably now won't go ahead because of the changed decision. After client gets new decision and wants to appeal again will I be in a position to request this again or will I be told this has nothing to do with this new decision?

The DWP really mauled about with this one. We'd never have got away with what TS has allowed the DWP to do.

Secton 9(6) of the Social Security Act 1998: "Except in prescribed circumstances, an appeal against a decision of the Secretary of State shall lapse if the decision is revised under this section before the appeal is determined". The "prescribed circumstances" are that the revised decision is no more favourable to the appellant than the original one.

So I'm afraid that if the revised decision in fact is more favourable, the Tribunal looks likely to find itself without jurisdiction. The only argument would be if the issue in question is not the amount of any OP but either fact of overpayemnt or recoverability, if that is totally unaffected by the periods/amounts involved. However, if the cahnge is directly linked (eg, they have now decided that for part of the original period there was no OP, or that it is only partly recoverable because of date of knowledge), then that may not help.

Thanks Ariadne, I'm challenging recoverability as a whole(despite the fact that he pleaded guilty to a reduced amount in court).

I agree with Ariadne, but also suggest a complaint along the 'abuse of process' lines suggested by Kevin.

I'm also a little confused to the claimant 'pleading guilty to '. Getting the benefit isn't the fraud - it's the dishonesty attached to it. So if the claimant has pleaded guitly purely on the basis of the amount of the overpayment, which is in itself, still under dispute - isn't that a little worrying? What if your client's appeal is successful and there is no overpayment?

There have been posts before on the site about this very same chicken and egg question ie court hearings before the appeal has been heard. And of course of the importance of close liaison between the defence solicitor who doesn't have an inkling about benefits and the welfare advisor.

Despite my best endeavours to keep in contact, the client's barrister stormed ahead as if he were Horace Rumpole and no doubt had a bottle of the old Chateau Thames Embankment at the local equivalent of Pomeroy's after the hearing.

Client was happy as the court ordered a much reduced overpayment but now thinks it's inevitable that his benefit appeal will be upheld even though I've told him it's a different kettle of fish.

"Client was happy as the court ordered a much reduced overpayment"

How can the court order an overpayment?

My wording was abysmal. I shouldn't try and do half a dozen things at once but that's no excuse.

In the words of his defence solicitor "The Prosecution finally accepted you had been paid £3000 overpayment and you entered a plea of guilty on this basis"

Hmmm don't know this is any better but it makes a bit more sense