I already asked this question here: http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=106&topic_id=2841&mesg_id=2841&page=

But it has come up again in another context which might help me to get a definitive answer, hence the new thread.

This time, the client's IS was stopped retrospectively following an investigation during which it was found that he had had regular periods of work whilst IoW and receiving IS.

The DM has superseeded the entitlement for the whole period (several years) and the SoS is seeking to recover the whole amount of IS paid.

The question is, can the client retain entitlement for the periods where he can show he was not working (assuming he can show he was otherwise IoW)? They are quite substantial with the longest being around 9 months.

Thanks,

This question is, to me at least, an ongoing sore.

The two CDs that *appear to apply* are CIS/2595/2003 and CH/269/2006.

The circumstances in each were different, so it *may* explain the difference in findings.

In CIS/2595, it was comprehensively found that stand alone, closed, periods did not prevent subsequent entitlement from continuing.

However, in CH/269, the Cmmr equally comprehensively found that once there was nil entitlement, there was nothing left to supersede.

The difference in circs was that in CIS/2595, benefit was in any case continuing and the period(s) of nil ent were simply a part of the overall decision. In CH/269, an award had ended and the LA (inadvertently) restarted benefit from a later date, but the restart was administered separately from the previous termination - i.e. two entirely separate "decisions".

My view is that this issue is far from resolved..... see what you think.

I agree with Kevin and mine and David's post on your other thread Tony reflects this ambiguity. This issue cries out for a commissioner's resolution one way or the other.

Apart from the conflicting Commissioners Decisions, there remains the fact that any amounts properly payable must be deducted when calculating the overall overpayment.

Dont forget also that all previous decisions before and during the period of the overpayments must be properly revised or superseded.(See CSIS/45/1990)

If the alleged overpayments cover a period of several years, there weill be a number of such decisions to consider.

Its my guess that the DWP may not have shown the grounds for any number of its purported revisions in this case

Does anyone have a copy of CH/269/2006 please
Philip Boyd

Copy being sent to Rightsent this afternoon.

cheers kevin ... here they are -

CIS/2595/2003 @ http://www.rightsnet.org.uk/pdfs/CIS_2595_2003.doc
CH/269/2006 @ http://www.rightsnet.org.uk/pdfs/CH_269_2006.doc

A close reading of the two decisions can reconcile them.

In CIS/2595/ 2003 there was an existing award, and a superseding decison resulted in nil entitlement for a period.

On the other hand in CH/269/2006, there was no award and since under para 2 of Sch 7 of the CSPSSA 2000 a claim no longer subsists once it has been decided and "accordingly the claimant shall not (without making a further claim be entitled to the benefit on the basis of circumstances not obtaining at that time"

Para 2 of Sch 7 can be read as referrring only to entitlement as of the date of the initial decision (as revised or futher revised) but not to entitlement after a supersesding decision on an existing award

Thanks Kevin
Philip Boyd