permitted work - overpayment and cycles of work

Having a bit of a struggle with a case ive just picked up and am really trying anything I can think of to get rid of/reduce an overpayment.

Gentleman on ESA C working part time - permitted work. I don’t have all details yet but based on info I have, seems he gets paid every 4 weeks. His payslip shows contract hours of 28 (assume that’s for 4 weeks) but from the few payslips I have, it seems he does around 43 normal time with occasional overtime, and holiday pay thrown in for good measure.

client has mental ill health and also cares for a seriously ill partner.  The issue of the overpayment has arisen because if he takes time off work for a hospital visit etc or when partner isn’t well,  he books holiday. The employer pay him for a whole weeks holiday (ie 35 hours even though he doesn’t usually work this time (I think this is a way of using up the accumulation of holiday over and above what would probably be 4 weeks @ 7 hrs as these are contracted hours, and I believe is common practice in retail) What he didn’t realise for sure was that this would put him in excess of the earnings limit of 16 x NMW. He tells me that he did think there might be an issue so he did call DWP to ask the question and was told because he was in the support group it didnt matter! Because he was told this, he only called once.

Problem no 1 - this is back in 2015 so unlikely to be any record of call (but maybe ..)
problem no 2 - he did an MR himself but decision was not revised - date of decision July 2017 so we are outside absolute time limit (going to try anyway)

Client is paid every 4 weeks and though I have no calculations, it seems from the overpayment periods that DWP have averaged the pay over 4 weeks and hence even though he probably only exceeded the threshold for one week out of the 4, (if we look at his actual attendance/pay for each week) because of the average, they are saying he has been overpaid for the whole of the 4 weeks. This happened on 3 occasions in 2015, and 3 in 2016 but totals 32 weeks ( 2 x 4 weeks and 1 of 8 weeks in each period) so the overpayment is over 3K.

ESA regs appear to say if there is a regular pattern of work, then earnings/hours should be calculated over one complete ‘cycle’. If he worked the same hours every week other than the holiday, I guess it would be easier to argue that his pattern is 7 hours a week as that is his contract but in this case, he does overtime often -which seems then to suggest that he has a fluctuating cycle? or does he have a regular cycle as contract is 7 hrs per week and he does extra regularly? (and if his contract states 28 hours over 4 weeks would this make a difference to how calculated?)

Is there any mileage in trying to get the actual number of hours worked each week from the employer and arguing that they should use this (as this would drastically reduce the overpayment) I am thinking of trying an official error argument in the way they have calculated to get round the absolute time limit but when looking at it in more detail, Im not certain that they have calculated incorrectly? should they have averaged over each pay period?

Im also trying a request for discretionary write off as this man is extremely stressed and his mental health is deteriorating as a result

any thoughts would be much appreciated      
thank you

As regards problem number 1 a record of the call is neither here nor there at this point in time. What matters more is what the client can recall. e.g. can they recall when they made the call; to which office or number; what specifically triggered that; whether the person they spoke to was male or female and so on? Credibility on the balance of probabilities in other words. The more detail then the more credibility.

The starting point is that the client appears to have identified an issue and sought advice (presumably) from the very people DWP say they should seek advice from. They have then apparently been misinformed so the claimant, not unreasonably, acts on that advice. This fixes the claimant with the ancient concept of a “mistaken belief, reasonably held” which tends to overcome all the old “you would have had an INF4”/“everybody knows” type arguments.

Thank you for your observations Mike. I will definitely use that argument if I can get them to look at the case/accept the appeal. This man seems very genuine, and im sure will be very credible - if we can get the issue to appeal