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ESA overpayment
thoughts/ideas/suggestions welcome.
client was on esa and started permitted work. via a parent (client has a learning disability but no appointee etc) they notified the DWP that they had started work.
there is a record of the call in the papers and the fact that a PW1 was issued.
client/parent states that PW1 was filled in and sent back, no further contact from DWP received so they assumed work was permitted as the call handler at the DWP on the telephony team had suggested it might (it was supported in the sense that a disability employability agency was involved).
unfortunately the work was for 25 hours per week so there is no doubt that ESA was paid when it should not have been. eventually there is a data match and issue discovered and overpayment generated. appeal put in against recoverability.
so…papers show call made, PW1 issued and there is evidence it was completed (employability agency happy to confirm they signed their part). client/parent says sent and DWP say never received.
now i have several thoughts/ issues.
1. The PW1 form tells you the earnings limit so even if this was filled in and sent was the client aware that ESA should stop and should they have been expected to follow it up when no word subsequently received back from DWP? (continuing duty to disclose? but then i think that only applies if the person fails to notify the correct office which if the tribunal accept point 2 then they cant apply that?) i have had a look for the guidance notes that come with a PW1 but cant find those online so unsure if those would help or hinder.
2. As far as i can see a tribunal could well decide that on the balance of probability that the PW1 was completed and sent and received at the appropriate office and the DWP didnt act on/lost it if they found the client’s/parents evidence credible…...but does point 1 pretty much null that argument in any case?
3. initially i thought the phone call informing the client was working might be crucial as in why send a pw1 if its obvious those rules wouldnt apply with the most basic of details….but the recon specifically says when that call was made they didnt know the salary/working hours.
4. just as a confusing side issue the call advising the client was working was made around a month after the client had started work so i cant see why the hours/pay wouldnt have been known as the evidence shows it was 25 hours every week. im going to ask about this one obviously
as i said thoughts, suggestions or any caselaw i might have missed welcome.
So, no appointee. Onus on client to disclose.
1 - is client capable of disclosure?
2 - what’s their reading/understanding like?
3 - are they capable of calculating own hours?#
4 - is there a process whereby anything they do gets run past the parent?
So, no appointee. Onus on client to disclose.
1 - is client capable of disclosure?
2 - what’s their reading/understanding like?
3 - are they capable of calculating own hours?#
4 - is there a process whereby anything they do gets run past the parent?
yes, every contact recorded with the DWP has it noted the client consented then spoke to parents so there is a process clear albeit unofficial.
client’s reading/understanding is limited but I don’t think its enough to say she didn’t understand the material fact she had started work or that there might be an impact on her benefits.
May understand the basics but did they understand the specific limitations on hours and/or earnings?
May understand the basics but did they understand the specific limitations on hours and/or earnings?
I wouldn’t say they understand the specific details no. in the general sense of this change will likely impact on other benefits I say yes.
What are the DWP arguing? I assume failure to disclose work / earnings (because they never received the PW1)?
The general info. leaflet sent to ESA claimants requires them to disclose starting work under the PW rules (which it would appear your client did via the initial Tel call). The procudure would then normally be to issue a PW1 form which gives some info about hours / earnings (depending on which version - older ones give less info / relied on DWP filling in blanks). On receipt of the PW1 a DM might make a determination that the work was within the PW limits (which would be recorded on the system) - although may not actually issue a decision to client to that effect.
If the DWP argue the PW1 was not received then I would assume they are arguing a failure to disclose the detail of hours / eranings which would be gathered from the PW1 and have allowed the DM to determine whether the work was within the PW limits.
So you may be needing to argue that, on the balance of probability, the PW1 was received at DWP but not acted upon - thus shifting causation of the overpayment from your clients alleged failure to disclose to DWP failure to act. If the support organisation have a copy of the completed form that may assist that argument. I fear it may be a difficult one to make.
Following the decision in B whether your client had capacity to disclose / understand the PW rules is not relevant. They were clearly instructed to disclose. The dispute is about whether they complied with that instruction to disclose (because the form was not recieved).
I had a case recently on PW rules where PW1 had been received but the issue was about hrs / earnings because the client was doing variable hrs etc (disclosed on PW1). The client had sent in a Subject Access Request for their ESA claim records - which duly arrived in dribs and drabs - including record of tel calls to DWP, meetings with DRO at local Jobcentre about PW and casual work and ‘determiniation’ on PW limits on receipt of the PW1 - none of which had been disclosed in the appeal papers. These records provided some very useful additional evidence to support my clients case.
In your case if the PW1 was received but not acted upon and/or a ‘determination’ was made as to whether client met PW limits - this may only be disclosed on making a SAR. Although this may be no more than clutching at a straw!
thanks for the lengthy response peter,
yes its a failure to disclose and yes im thinking of the received but not acted on route. my concern though is the tribunal going in effect “well it told you on the form what the earnings limits were so surely you twigged something was amiss when you just kept getting the money?”
ive looked at the continuing duty to disclose but that’s appears to all focus on cases where a different office was advised than the paying one.
I’m slightly more optimistic. Tribunals in my experience disregard stuff like B. They are more inclined to look at a case under the old approach to failure cases even this far down the line.
That said, has the appellant ever done permitted work before? If not then I would happily sit in front of a tribunal and a PO and ask how the appellant would even know about a PW1?
In any event I’m not sure DWP can make a failure to disclose case stick.
They know the form was sent out and why. There is IS o/p case law going back years talking about how, in effect, DWP were put on notice (in this case of work starting) and this imposes a common sense need for them to follow up if nothing is received. The IS stuff was around o/ps of IS when DWP put on alert because a single parent says they have claimed but not yet received Child Benefit.
The claimant knows about a PW1 and says it was completed and returned. How could they possibly know about it if they’d not done such work previously? There is also plenty of case law about what should happen when phone calls are made and around the need for the DWP to detail to an appeal tribunal the processes followed to record such calls. Ask for what they record and for this specific recording or the notes of the call. It strikes me, again from a common sense angle, that it would be unusual (and lacking in credibility) that a claimant makes a call; talks about starting work and there’s no discussion about hours and earnings before a decision is made to issue a PW1.
From that perspective, it has official error written all over it from start to end.
It strikes me, again from a common sense angle, that it would be unusual (and lacking in credibility) that a claimant makes a call; talks about starting work and there’s no discussion about hours and earnings before a decision is made to issue a PW1.
From that perspective, it has official error written all over it from start to end.
that’s what I thought so in effect you would have a potential double notification in the call and the pw1.
then I read the recon which said when they made that call they didn’t know the hours she would be working or earnings she would have so we cant blame the call handler for not advising them it clearly wouldn’t be permitted work at that stage.
I think the argument still stands. When the person made the call, if they didn’t know the hours or earnings then how did they know it was PW they needed to talk about, especially if they’d not done it before? Ordinarily the conclusion of such a call would be that, if the caller knew neither of those things, they would be asked to call back when they did. Announcing that you’ve started work can only have one of four conclusions - PW, cessation of benefit; reduction of benefit, or, nothing to be done until more details known. I don’t see how the call goes from not knowing the hours and pay to a PW1 being sent out.
I think the argument still stands. When the person made the call, if they didn’t know the hours or earnings then how did they know it was PW they needed to talk about, especially if they’d not done it before? Ordinarily the conclusion of such a call would be that, if the caller knew neither of those things, they would be asked to call back when they did. Announcing that you’ve started work can only have one of four conclusions - PW, cessation of benefit; reduction of benefit, or, nothing to be done until more details known. I don’t see how the call goes from not knowing the hours and pay to a PW1 being sent out.
im not so sure that’s a strong/valid argument.
I think its pretty reasonable for a call handler to issue a pw1 in a circumstance where it might be permitted work as that form (if returned) would still allow the claimant to notify all the “material facts” of the change and a decision to be made.
seems in line with the “furnishing the secretary of state bla bla bla” regs as well so I think your first and last outcome suggestions are the same really as all a pw1 does is give a dm info.
I don’t think its overly relevant if a client knows what a pw is for either as: they made a call to notify a change, got told heres a form you need to fill in, the form said you cant earn over x, no follow up from client when nothing changed or response received.
interesting to see other perspectives though as that’s the point in the thread.
Tbh I think a tribunal would find it extraordinary that you ring up DWP to notify of starting work and you end up being offered a PW1. Had literally hundreds of jobseekers over the years who’ve never been offered that as an option. Maybe others working with people in relevant groups have but I haven’t. Other than that all I can only add three small things:
1) is that I have won with this argument a few times, whilst
2) is that it still comes down to official error. Correct answer would to most people be “ring back when you have something material to discuss”. Sending out a PW1 imposes a condition on a claimant that actually shouldn’t apply i.e. to declare if their hours etc. are above PW limits. If all had gone as it ought then they should have been treated as someone who was declaring work that brought them off benefit. By erroneously sending out the form they have imposed a false obligation to declare on a claimant and then punished them for not doing something they should have never had to.
3) At the very least that should lead to a suggestion that perhaps they need to use their discretion to not recover. My take would be that it’s always official error though.