I have a potentially difficult situation and need help. I have a client who became ill many years ago. Prior to her illness she was working for a small local firm (I think they have 2 employees). After the usual period on SSP she claim ICB and was duely awarded it. Her employer also promised to pay her a sum each week which she assumed was in the form of a sickness pension (this was in the days before pension payments could reduce ICB so she continued to be paid the full rate).

Her illness is one that fluctuates wildly, some weeks she is fine but the next she may need to be admitted to hospital. During the good weeks in order to prevent her from getting bored out of her mind watching daytime TV she offered to do some work for her old employer on what she thought was a voluntary basis. She does this at home, no set hours, no contract of employment, no compulsion to do the work, no threat of withdrawing her "pension" if she does no work and no variation in the payment she receives regardless of the amount of work she does.

While the DWP have never queried her incapacity on grounds of the PCA they are now saying that the payments that we have assumed to be a pension are in fact earnings. As they exceed the permitted work earnings limit they have withdrawn her ICB and are now talking about a £20,000 overpayment of ICB. To make things worse we have just found out that according to the DWP her employer has been paying NI contributions.

I firmly believe her when she says that no fraud was intended and she had always believed the money to be a pension. My question is does anyone know of any definition of employment or work. I am aware of the definition of working as a volunteer but the DWP are arguing that the payment she recieves is in return for the work she does. Do we stand a chance?

Andy

Have a look at s122 of the Social Security Contributions and Benefits Act 1992 for the definition of employment and s2,3 and 4 for the definitions of earners, earnings and payments treated as remuneration and earnings. Section 4 deals, inter alia, with sickness payments.

It may be difficult for your client as a contract of employment does not have to be expressed, it can be implied. However, did your client fail to disclose any material fact which led to a recoverable overpayment under s71 of the Act?

Sounds like quite a complex case which requires a lot of research and hard work. Let us know how it develops.

Regards
Paul

Paul,

Thanks for this. It seems to me that her main problem is doing the work for the person who is paying her. She also gets a sickness pension from a previous employer (she had a previous period of illness prior to the current) and the DWP are not claiming that is wages (nor could they). Logic tells me that she is doing nothing wrong but when was the law ever logical?

As its a while since you posted your query (understatement), I may be too late with this. However...
If your client became ill many years ago, is it the new permitted work rules or the old 'therapeutic' (exempt) work rules which apply?
If there is a massive overpayment, I know it sounds obvious but check the DWP have calculated it correctly. I have a case where the overpayment was reduced from about £6000 to £3000 on reconsideration by DWP.
If she didnt do much work, perhaps try arguing that it is 'de minimis' i.e. of so trifling a nature that it can be disregarded. See CIB/6777/1999 for commentary on this. I have an appeal pending where I plan to use this, but I havent used it before!

I argued 'de minimis' the other day with that commissioners decision, and it was enthusiastically accepted by the tribunal, and the Presenting Officer into the bargain! Needs sympathetic circumstances, though, as I've also had it thrown back in my face with a judicial sneer...

Cheers for that, Robbo. I feel more confident now. When I discussed my draft submission with my client the other day, I did warn him that the tribunal might think I was daft, but I said I would risk it!
(Jo Rees, Welfare Benefits Caseworker, Wythenshawe CAB)

Had the appeal last week. Chair reserved judgement but we had the result yesterday. It was ruled that the work was too casual to be linked to the money she received. Chair ruled the work was voluntary, the money was a sickness pension (treated under the old rules so no reduction in the ICB) and ICB should be paid for the whole period she was "working". No sign of DWP asking for statement of reasons so hopefully that is that.

Well done Andy.
Our IB overpayment appeal was successful - chair accepted de minimis argument. Lovely jubbly.

Jo Rees, Wythenshawe CAB.

Andy

Good result!

Paul