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ESA continue to overpay, despite being told of COC
Dealing with an appointee, who has a daughter in ESA support group (also gets PIP HR care and SR Mob). Daughter started a Uni course in September and gets a Student Loan . Phoned ESA and advised, was told to send in letter confirming SAAS, which she did. Didn’t get sent in till October 2018 as daughter got in on clearing so SAAS wasn’t through. (Students Award Agency Scotland). Sent it to ESA with covering letter showing change in Income.Sent Recorded Delivery.There should have been an ESA payment top up anyway, however ESA have continued to pay full amount. Daughter is at Uni with support so gets Disabled Student’s Grant.
Appointee hasn’t spent any of this as she is aware this is not correct. Come January 2019, appointee gets a letter asking when daughter finished Uni, which appointee again asked when this would be sorted and why it has taken so long- no answer from ESA and still ESA is being paid at full amount.
Appointee is getting frustrated with ESA, and hasn’t phoned them as she is collecting a paper trail in case of compliance .So another letter was sent yesterday asking them to sort it, and threatening ESA with her MP due to their incompetence.
Am I correct in thinking that under Common Law the DWP have no right to recover the Overpayment as Appointee has informed DWP and they have not acted on it? She has proof and proof that the Recorded Delivery letters were delivered. I believe the Appointee has acted as much as a reasonable person should to inform them of changes, but she is worried in case they stop her daughters ESA in the summer due to this OP, when her Student Loan would stop.
Anything else we can do.
You are right about the Common Law. In CPAG v SSWP[2010] UKSC 54 the Supreme Court ruled that the Sec of State could not recover overpayments under Common Law but only if recovery was permitted under s.71 of the Social Security Admin Act 1992.
For that to bite the claimant or appointee must have ‘misrepresented or failed to disclose any material fact’ and it is this failure or misrepresentation that caused the overpayment. Sounds like the appointee has disclosed the change already.
A slightly random thought- is the appointee actually the appointee or do they just believe themselves to be the appointee- if they are not then the DWP may not be willing to act on the information they have tried to give them
No , appointee is 100% the appointee.All letters are addressed to the appointee, and is officially recognised by DWP as such. Thanks for your help, I was pretty sure I was correct.
My client has been overpaid new style ESA by about 2 months. She reported a phased return to work and has had conversations with ESA over the past 2 months, but no one could tell her what impact the phased return would have. I don’t know whether they were looking at where the parameter of permitted work might fall.
She’s now had a P45 and a letter of how much she’s received, and a decision notice with the end date of the ESA. But no mention of any overpayment.
Looking in the new CPAG Handbook, overpayments of nsESA in UC areas are always recoverable, so will this hold despite the Supreme Court’s findings?
I’ve advised my client to sit tight for the meantime, but she’s very anxious about more envelopes dropping on her doormat. And neither of us have got 45 minutes spare to listen to Vivaldi!
All overpaid “new style” ESA is recoverable under Section 71ZB of the Social Security Administration Act - the Supreme Court’s decision would apply if DWP were trying to recover under Common Law instead (but they won’t)
All overpaid “new style” ESA is recoverable under Section 71ZB of the Social Security Administration Act - the Supreme Court’s decision would apply if DWP were trying to recover under Common Law instead (but they won’t)
Thank you Brian. That’s really helpful. I’ll advise her to await the next bit of correspondence.
Wee update-after months of complaining, the DWP have now “fixed” the ESA issue. Only asking for small Overpayment back between time of Student Award letter being issued and the date that we wrote to them (delay due to Student Award letter arriving late). Rest is written off! Happy client.
Wee update-after months of complaining, the DWP have now “fixed” the ESA issue. Only asking for small Overpayment back between time of Student Award letter being issued and the date that we wrote to them (delay due to Student Award letter arriving late). Rest is written off! Happy client.
result!