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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

SDP overpayment - recoverable or not?

SamW
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Lambeth Every Pound Counts

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Hi all,

Just wondered what people thought of this situation…

Client claimed ESA on 14/07/2011. On this date her eldest daughter was 18 years old and living with her. This daughter was still in education. 

Shortly after this (12/08/11) she was awarded DLA MRC/HRM.

The daughter finished education on 19/07/12 and turned 20 on 15/10/2012. She is still living with client.

Client has been getting SDP for a long time. She thinks that it was awarded around the time she got DLA. On our HB system I can only see it starting from 13/04/13 but it is not unusual for claims to be recorded as having started early in April when in fact this is the date that a new annual rate has taken effect and the claim is in fact older.

So client has been overpaid SDP for at least 5 years. It may well be that it was overpaid from the date daughter finished education in July 2012. I’m looking at whether the overpayment is likely to be recoverable.

If the 13/04/13 date is accurate (or indeed if client started receiving SDP any time after her daughter finished education in July 2012) then it seems fairly straightforward - either client declared the correct facts on her IS10 and these were processed incorrectly or she did not declare the correct facts.

However it seems more likely to me that client was awarded SDP whilst her daughter was still in education. If this is the case (and she never reported her finishing education) then I think any over-payment between this date she finished FTE and the date she turned 20 is recoverable.

What I am interested in in that situation is whether the o/p should be recoverable after the daughter turned 20. Assuming that she had given the right info in the first place, the DWP would have been aware of the daughter and of her date of birth. So for me there seems to be an argument that the DWP were aware of the ‘change in circumstances’ (that the daughter was now 20) and as such the client’s failure to tell them did not cause the over-payment? The client was making the point to me that many years ago when her children became old enough that she was not entitled to IS the DWP wrote to her to tell her that her benefit would stop as she was no longer entitled.

Any thoughts would be greatly appreciated - at 5+ years of SDP the overpayment is likely to be pretty huge :( .

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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That is how I would argue it.  Given that ESA(ir) has never included any allowances for dependants, the only possible reason for DWP needing to know the daughter’s date of birth would be associated with her being, or becoming, a non-dependant.  They know that she cannot be a QYP beyond the age of 20 at the absolute maximum, so the cause of any overpayment from that point onwards is their failure to make pertinent enquiries generated by the information the claimant had already provided.  If they are not expected to make such enquiries, what is the point of knowing the daughter’s date of birth?

It could be argued that they should have made enquiries even sooner than that, but I think the claimant bears more responsibility for not reporting her daughter leaving education - that could happen at any time between ages 16 and 20 so you cannot expect the DWP to write to the claimant every week.  But after 20: it’s clear cut then, she can no longer be a QYP, therefore no longer a member of the claimant’s family, therefore no longer excluded from the definition of “non-dependant”.

BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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I think that the possible flaw in this argument is that whilst DWP knows the daughter’s DOB, it would not necessarily know whether she was still living at home or not (unless she had made her own benefit claim). Where therefore does the burden of establishing the facts fall? On the DWP to take the initiative and find out for itself or the claimant to report it?

SamW
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Thanks both for your replies

Billy - my response to that would be to argue that (once again assuming client provided accurate information) the DWP were aware that the daughter was living there and so in the absence of any information to the contrary should assume that she remains there.

Interestingly I had a look at the ESA40 (the ESA equivalent of an INF4) and the only thing it says about other members of your household is the need to report when they leave or join - nothing about changes of educational status let alone about reaching certain ‘milestone’ birthdays. I imagine that the DWP will argue that when you provide information in for example your IS10 there is an ‘implied’ responsibility to report when any of this information changes. That might work for the educational status but not for the age issue I think. We will wait and see…

 

Va1der
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Welfare Rights Officer with SWAMP Glasgow

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Resurrecting an old thread.

Client has been getting SDP for a decade. Son recently turned 20, and SDP does not appear to have stopped. As far as I understand any OP after his birthday wouldn’t be recoverable.

However, he apparently claimed UC ‘some time last year’, which would have made him a non-dependant, no? Could the OP start here, or would DWP be expected to keep track of this change? As far as I could gather, client’s TCs/CB had stopped as expected.