Overpayment appeal - no response from DWP

Clt was working and claiming IS on grounds of incapacity up to Jan 2008. Following an IUC his claim was disallowed. He was treated as capable of work and a recoverable overpayment decision was made.

We appealed the entitlement and overpayment on the grounds that he was entitled to IS as a ‘disabled worker’. He had been working on and off and can’t hold down a full-time job.

TS spilt the issue into 2 appeals – one on the incapacity decision and one on the IS entitlement and overpayment decisions (perhaps there should have been three – one for each leg of the IS issue?)

Anyway - Tribunal in Feb this year set aside IS disentitlement decision as he met the disabled worker criteria – that was one appeal.

On the incapacity issue the Tribunal asked DWP to revise their decision that he should be treated as capable of work for the whole of the period from the start of his work as there were some weeks where he didn’t work at all.

TS have now arranged new hearing – neither me nor clt have heard from DWP - and (I must admit) I did not chase up clt (or the DWP?) as assiduously as I could have.

I would welcome suggestions on strategy at this point. As I see it at the moment there is no recoverable overpayment of IS – the ball is in the DWP’s court to respond to the Tribunal’s decision in Feb to set aside the IS OP decision.

How long is it reasonable for that ball to linger there?

Is there any benefit in pursuing the IFW appeal? Do we turn up and ask the Tribunal to uphold his appeal against a decision that we didn’t really appeal in the first place as we had concentrated on the disabled worker issue.

Or do we just turn up and say – the DWP haven’t responded so uphold the appeal please?

Or what?

hi don

could you just clarify what happened with IS: was it that, having found that the claimant was a disabled worker, the tribunal sent back overpayment to be recalculated by DWP on basis of claimant’s earnings, rather than on basis that he wasn’t entitled to any benefit for whole period?

cheers ros

Ros - thanks for your response to my slightly garbled initial post….

Yes indeed, at the Feb 10 hearing the Tribunal set aside the IS overpayment decision on the basis that clt was entitled to IS as a disabled worker.

I assumed this didn’t stop overpayment being calculated for periods where income exceeded IS app amount and also for weeks that he didn’t work.

But silence from DWP.

At new hearing Judge was unimpressed by DWP’s lack of response to her directions on IFW issue. She held that work started 10 April 06 and was to be treated as exempt and as such still entitled to NICs when earnings below exempt figure and any weeks where no work.

So my client has done as well as he could but I presume is still vulnerable to a new IS OP decision.

My question stands - how long before this is an abuse of process?

We’ve had something similar - client was a carer for his severely disabled brother who had to go into residential care when client had a major heart attack and was in hospital for ages. He had CA and IS. He had later made a successful claim for IS on grounds of incapacity, but before that there had been a 2-year overpayment when the cessation of CA and DLA wasn’t noticed.

We have helped him successfully to appeal on the grounds of the offsetting rules in Reg 13 of the Payments on Account regs, proving that he has been incapable of work and thus entitled to IS all along; and has indeed been UNDERpaid because they were deducting CA from his IS when it had stopped. Judge (a DTJ) sent case back to DWP to consider the underpayment but not a dicky bird since.