Overpayment of IS based on Living together as man and wife.

I have a client who has recieved an O/P decision regarding her claim for IS as they have assessed her as living with her boyfriend as husband and wife. I am preparing an appeal.

The client’s boyfriend was an Asylum seeker, which I understand from the client, was awaiting a decision regarding his application for asylum; the client states he was not recieving any support from NASS and staying with a friend..

I found; CIS/317/1994, If they conclude that the claimant is or was at any material time living in a husband and wife relationship with Mr M, then they will need to ascertain whether Mr M’s earnings were such as to preclude entitlement to Income Support under section 124(1)(c) of the Social Security Contributions and Benefits Act 1992 and regulation 5 of the Income Support (General) Regulations 1987 S.I. 1987 No. 1967.

Would the fact the client’s boyfriend was not be eligible to public funds make the above irrelevent?

The fact he had no money atoll mean he can not be considered to be part of her household as he could not contribute toward it financially and it could not be expected for the client to support him as she had 2 small children and a baby when her boyfriend would stay overnight at her home?

Thank you

Graham

It’s totally relevant.
If the facts are as stated then whatever the outcome of the appeal, she is going to be entitled to a means tested benefit, whether IS or JSA.

Any OP of IS might be offset by underlying notional JSA for the same period. There would be little or no loss to public funds.

There is conflicting authority for whether underpayments of JSA can offset overpayments of IS and vice versa under regulation 13 of the Payments on Accounts, etc, Regulations.  However, the authorities that say there is no scope to do so seem to me to be stronger.  The support for the proposition that there is such scope was on a case prior to the regulation being amended in 1999.  Following that amendment (introducing offset for Tax Credits) the earlier authority was weakened.  The reason for this was it was clear that following the amendment only underpaid Tax Credits could be offset against overpaid Tax Credits.  Therefore it would be consistent to treat IS and JSA the same given the particular wording of 13(1)(b). 

However, it is up to the DWP to prove its case and it has to have something more substantial than mere hearsay, innuendo, rumour or unsupported allegations.  However, if the Department does have something substantial then the claimant has to be in a position to refute the allegations and provide rebuttal evidence.  If the appeal is lost then ask the DWP to write the overpayment off as no true loss to the public purse.

Just to add to the “overlapping benefits” issue (assuming there is in fact an overpayment at all in the first instance).

Even if an overlapping benefit cannot be offset against the ACTUAL overpayment, it is still relevant in the event of criminal proceedings as it is the net loss to public funds that affects sentencing.

I had a brief chat with a some one from the DWP and was advised that the ‘partner’ of the client would be expected to look after the children while she looked for work and therefore a claim for JSA would have been required.

The client was ill during this period recieving DLA middle care; I was advised by the DWP if she looses the appeal to make a claim for ESA requesting a back date. The period is betweem 1/12/08 amd 2/6/10.

‘If they conclude that the claimant is or was at any material time living in a husband and wife relationship with Mr M, then they will need to ascertain whether Mr M’s earnings were such as to preclude entitlement to Income Support under section 124(1)(c) of the Social Security Contributions and Benefits Act 1992 and regulation 5 of the Income Support (General) Regulations 1987 S.I. 1987 No. 1967.’

Should the it have been ascertained whether the client and her ‘partner’ were eligible for IS etc when the issue of eligibility as a loneparent first arose; so as to give the client the chance to make a back dated claim for that benefit then?

Would a back date for ESA be considered under the regs below or would it be down to giving ‘good cause’ why the claim was late?

The Social Security (Payments on account, Overpayments and Recovery) Regulations 1988
Offsetting prior payment against subsequent award
5.
(3) Where an amount has been deducted under regulation 13(b) (sums to be deducted in calculating recoverable amounts) an equivalent sum shall be offset against any arrears of entitlement of that person under a subsequent award of income support for the period to which the deducted amount relates.

It would be worth asking DWP to waive recovery of the overpayment on the basis that there would have been notional entitlement to JSA.  This is of course outside the decision making rules and not subject to appeal.  You may need to pursue the complaints procedure to it’s ultimate level if this is refused.

In addition, have a look at R(IS) 10/05 which confirms the need for DMs to establish whether there are other grounds for entitlement to IS.  This is an inquisitorial system and the burden of disallowing benefit lies with the DM who has to prove that it is more likely than not that there was no other basis for IS entitlement.

In this case, your client loses entitlement as a lone parent, but you are suggesting she is incapable of work (no need to claim ESA as she is on IS).  The DM should have explored other avenues of entitlement to IS (but so often they don’t).

Obtain suitable retrospective medical evidence as you seem to indicate she was incapable of work and then request that DWP revise and as part of this make a decision on ICW including referring for a a medical examination.  No need to claim ESA as she was on IS.

You said that your client said that the alleged partner was staying with a friend. One of my client had a living together decision revised when she produced some temporary admission document for the partner, which showed the address where he was supposed to live (and was a different address from hers)