ESA overpayment and volunteering

i have an appeal for entitlement and an overpayment of ESA due to volunteering . client has enduring mental health issues and is under consultant and on a community treatment order he lives i supported accommodation and has a access worker cpn etc. he has been sectioned under MH act .local council are his appointees as he cannot mange his money . his support team state that he is vulnerable and lacks insight into his condition . client states he wants to be normal and this led him to on his own accord start voluntary work . he did not mention this as he is suspicious of anything to do with his mental health . it only came to the appointees attention when after a fraud report went into the ESA to say this guy was working ( alarmingly they know all his details dob, nino and the company ) this was reported to DWP in may 22 and a enquiry form was issued at the end of august 22 . appointee was completely unaware and so was his access worker he was doing this work . further investigation carried out an this guy had started working without pay his hours rapidly increased and another paid member of staff left and miraculously my client hours increased . until the company went bust not long after.
esa have said it cannot be permitted work as the hours exceeded 16 . and it cannot be voluntary work as another person could have been paid to do the job. and that he failed to notify as they have classed it as full time work he has now lost his esa entitlement and got over payment. he was contribution only esa from merge over from IB.

my client had no idea of the complex rules and hoops that you have to leap through and it is clear he was exploited . he said he had looked at stuff on the web and it aid you can volunteer as many hours as you like and some bits that i have also looked at say for any establishment admittedly it is 2019 but the whole volunteering thing is very misleading. the submission seems to be more fixed on the appointee for not reporting . but they could not report something they were unaware of . they have not considered the client health issues in anyway and the reasons he did not report again this is a ib transfer case . i would like to have any advice on how to get the tribunal to consider that his entitlement should continue and the overpayment be removed . this client is generally vulnerable he has been know to ss and mh services since 1994 the company he worked for wen bust and that shows on companies house . if any one has any suggestions. he is in receipt of PIP edl and em

To unpack what the DM is saying; you don’t qualify for ESA if you are in “work” which does not necessarily need to be paid. Certain work, as per reg 45 ESA Regs 2008, is exempt and doesn’t count. This includes - per reg 45(6) - work done as a volunteer but only where the SSWP is satisfied that “it is reasonable for the claimant to provide the service free of charge”.

So when the DM says that “another person could have been paid to do the job” that is the test they are addressing. It sounds like they feel that it wasn’t reasonable for your client to be engaged in doing a full time job for a private company for free in circumstances where they had previously hired someone to do that job. But the test isn’t whether it was reasonable for the company to ask the claimant to do the work, its whether it was reasonable for the services to be provided free of charge - a notional ‘reasonable man’ might well not have continued to work for the company in these circumstances, but the test perhaps permits the FtT to look at the case through the lens of your client’s particular disabilities and circumstances. Perhaps he was not so well placed to identify that what was being asked of him went beyond what was reasonable and perhaps, you might argue, that should be taken into account. It would also be useful to understand what the nature of the business was and why he was participating in it.

Something I wonder about is whether it might be possible to argue that reg 45(1) can apply here also - i.e. work which pays less than £20 per week - there doesn’t seem to be anything expressly preventing someone whose work is voluntary in nature from relying on this exemption instead (assuming that they aren’t getting more than £20 per week in lunch money, travelling costs etc.) and therefore avoiding the ‘reasonableness’ test although the DWP might say that this isn’t the intent of the Regs.

Another relevant aspect for entitlement purposes is when exactly this all occurred relative to the decision. If the work had stopped by the time that the decision was made, then this ought to be dealt with as a closed period supersession which wouldn’t end entitlement on an ongoing basis. It is not clear from your post.

Recoverability also needs to be considered but its gone midnight so I will leave that to someone else.

hi Thank you for this this is helpful it will certainly go into the submission , he was cleaning plates and pots away in a small food place . in his own mind he was benefitting health wise and found it reasonable not to be paid. he would not have been aware that he was being taken advantage of when a reasonable person would have done . owner seemed to have took him under his wing up until the placed closed down , it does worry me that many clients who would really benefit from volunteering in any establishment to improve their health will fall foul of the complex rules and also so many well meaning support workers care workers and family carers will not be aware of the rules . i have a client at the moment that has been told to consider for voluntary work to improve their health journey by his work coach but has not been given any information on what counts as voluntary work.

thanks so much