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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Regulation 4(5) The Social Security (Overlapping Benefits) Regulations 1979

Andyp5 Citizens Advice Bridport & District
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Would be really grateful for any thoughts on the following i.e. are we making a viable case or have I etc etc clanger.

This is a case that relates to IR ESA overpayment and entitlement decisions i.e. DWP arguing that his appointee / carer was in receipt of Carers Allowance for the period concerned. Failed to disclose that fact and the SDP continued to be paid.

Which for the period concerned in 2020 was correct. Until the appointee was awarded NS ESA after her appeal was lapsed in her favour after a dispute whether she met the second contributions condition.

That decision in 2020 found she was entitled to NS ESA for the same period she had previously been in receipt of CA. Payments of arrears of NS ESA made. Offset against any CA paid for that period.

At the date of the entitlement and overpayment decisions both in 2021 the appointee was in receipt of NS ESA.

We are arguing the following - : e.g. overpayment decision appeal

Her entitlement to CA at the date of the decision under appeal was confined to an underlying entitlement because of the overlapping benefits rules - earnings replacement benefits.

If more than one earnings replacement benefits are payable - a contributory benefit is paid in preference to a non-contributory benefit i.e. ESA in preference to CA and as ESA pays the highest rate then ESA is paid. The claimant has an underlying entitlement of CA but no payment - Regulation 4(5) The Social Security (Overlapping Benefits) Regulations 1979.

At the time of the decision under appeal was made **/**/2021. That applied to the period **/**/2020 - **/**/2020. ********* was entitled to NS ESA i.e. contributory benefit - not CA (merely limited to underlying entitlement).

11.  Therefore, entitlement for the Severe Disability Premium to be added to ******** IR ESA applicable was arguably lawful and he was not overpaid IR ESA for the period **/**/2020 – **/**/2020 - Legislation Schedule 4 (6) (2)(a)(i)(ii)(iii) ESA regulations 2008.

Paul_Treloar_AgeUK
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So Carer’s Allowance was in payment at the same time as SDP with ESA award but payment of the CA award was subsequently stopped when the client became entitled to new style ESA?

If that is the case, then yes I agree that any overpayment of the SDP also terminates at that point in time.

Para.6(2)(a)(iii) of Sch.4 of the ESA Regs is very clear:

(iii)no person is entitled to, and in receipt of, [F16a carer’s allowance

Someone was entitled to CA but from the point that the ESA award took precedence, the person was not in receipt of CA so this condition was satisfied again.

Andyp5 Citizens Advice Bridport & District
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Paul_Treloar_AgeUK - 22 June 2022 04:44 PM

So Carer’s Allowance was in payment at the same time as SDP with ESA award but payment of the CA award was subsequently stopped when the client became entitled to new style ESA?

If that is the case, then yes I agree that any overpayment of the SDP also terminates at that point in time.

Para.6(2)(a)(iii) of Sch.4 of the ESA Regs is very clear:

(iii)no person is entitled to, and in receipt of, [F16a carer’s allowance

Someone was entitled to CA but from the point that the ESA award took precedence, the person was not in receipt of CA so this condition was satisfied again.

Yes in answer to your question Paul.

Thanks really appreciated. It was the case we made at the MR stages for both appeals.

Not for the first time with NS ESA appeals or for that matter with UC appeals excluding WCA appeals. DWP have eerily and literally ignored the MR/appeal grounds.