Overpayment of IS due to ESA group change

Hello beautiful people!
I was wondering what your thoughts are about this one.
Client was on ESA (assessment phase) + DLA (MR care). Partner on CA. They received a top-up of IS.
In August 2010, following ATOS exam, she was placed int he support group and her ESA went up from the assessment phase to main group support group.
Peterborough BDC now say she owes £890 (from August to date) in overpaid IS top-up (i.e. top-up was not readjusted to reflect increse in ESA payments)>
Considering it’s the same BDC handling ESA and IS, can there still be a failure to disclose? Does it depend on who was the claimant for IS purposes? Client’s partner (i.e. the one claiming CA is the IS claimant).

Your thoughts would be appreciated

Thanks

Income support is obviously means tested and the amount of top up is determined by the amount of assesable income received into the household (sorry for stating the obvious people!). As the client got the extra ESA components added then her IS should have been reduced by about the same amount. Therefore it is recoverable as the obligatory reporting of the change of circs wasnt done by client.
What annoys me though is that basic benefit information is never explained properly to clients and they rarely understand the principle behind why they get certain benefits in the first place. This often leads to a lack of people reporting these changes.
DLA is an example of this. I have had many HRM clients who can walk better than they used to but are still affected and think they should be put onto LRM.
The DWP having no duty to talk to each others BDC regarding updating claim info is a wonderful get out of jail card for them but there you go.

Thanks for your replies.
Tony, can I ask you what you mean by: “That the IS claimant is a different person than the ESA claimaint fairly well cements this in stone”. Do you mean that there’s even less chance of suceeding?
In my opinion (but I may be completely wrong) if client was the IS claimant then the overpayment would probably not be recoverable but because her partner is the IS claimant (and client is the one who had the change in circs.) then he should have reported it and he’s stuffed.
I totally agree with Sunderland West Advice Project that the law on recoverability of overpayments is totally weighed in favour of the DWP and it’s not fair that people are supposed to understand complicated mechanisms of interactions of benefits or have to pay £1,000s back. Time for a test case, anyone?

It is now well established that the claimant is under an absolute duty to disclose changes which he has been unequivocally told to report or a qualified duty to disclose changse he could have reasonably known he had to report.

It is also trite law that where two different sections are held within the same office he is not obliged to tell one section that which the other section knows unless he is explicitly told to do so.  This is not the same as a situation where two different offices are involved, per Hinchy.  However, even if there is a failure to disclose the recoverability of the overpayment is down to causation and it is not automatic that the failure to disclose is the cause of the overpayment.

But, I agree with Tony that what is likely to be fatal here is the fact that the ESA claimant and the IS claimant are different people and the failure to disclose by the IS claimant is almost certain to be the cause of the overpayment.  However, as a long shot it still might be worth finding out who knew what.

Thank you for your posts.
I will try to find out what communications were made between the different sections. I know for sure that at Peterborough they’re all in the same building (ESA, IS, IB and JSA). I’m not happy to let this go without a fight!

As an extra thought - have you checked whether they are now better off on i-r ESA due to the edp