Hi,

Got a client who worked for a period of 34weeks approx; doing on average 3hrs per week whilst claiming Income support. It was contract work with the NHS and she was paid in 3 separate monthly instalments; so for the first 20 weeks or so she wasn't paid.

This was the first time she had worked since arriving in the Uk and she sought guidance from the an adviser in the DWP. She explained to him the stop and start nature of her work and he told her to bring in a wage slip each time she was paid and then they would calculate the amount that she will get paid in IS. The DWP have no record of this initial conversation.

The first two monthly instalments were only small amounts which were paid into her bank account without getting a wage slip and the last amount was equal to about 90% of what she had earned. She got this on the final day and presented the wage slip to the DWP.

Soon after they contacted her, stating that she had an overpayment of nearly £700. She disagreed with their calculation and got advice.

This is were things get messy: she was, wrongly, under the impression that the amount on her final wage slip was inclusive of expenses for childcare, travel and mobile phone and disagreed because of this. She was wrong on this and has no problem paying back to amount requested. Unfortunately this was not picked up soon enough and letters were sent on her behalf contesting the amount, muddying the waters.

However during this time the DWP fraud investigation unit called her for an interview under caution and have subsequently issued her with an ultimatum to pay a fine or face further action. Presumably they feel that she has failed to disclose or misrepresented a material fact.

She was advised to appeal against the decision which she has done. If there was no ultimatum from the DWP, the client would be more than happy to pay what she owes.

What should she do: Continue the appeal against the overpayment, or should she cancel the appeal, pay the overpayment but not the fine and see if they take further action against her? If so then challenge it.

If she loses on the appeal that may make it more likely that she will have to pay the fine. Would it not?

Anybody got any other view.

If she has ground for appeal then she might want to continue. To recover an overpayment there has to be a failure to disclose or a misrepresentation of a material fact and the overpayment must have been caused by that failure/misrepresentation.

To bring a successful criminal prosecution the DWP have to show that some dishonesty or culpability was involved. For instance, making statements you know to be false, producing documents you know to be false, failing to notify without reasonable excuse changes in circumstances which you know affects benefit entitlement or knowingly causes or knowingly allows another person to fail to notify a change of circumstances which such regulations require the other person to notify and he knows that he, or the other person, is required to notify the change of circumstances.

If she thinks none of the above apply she should consider refusing to accept the fine. Losing the appeal would not tell much necessarily as recovery of an overpayment can found on wholly innocent failures to disclose/misrepresentations.

Thanks for clarify that for us.

M