Chances of overturning overpayment

My client is a professional deputy. In 2019, she wrote to the DWP to advise them that her client was only receiving ESA-C and she should be entitled to ESA-IR including the enhanced disability premium. She was sent an ESA3, which she completed to the best of her knowledge and sent it in.

Her client lives with her mother, who she declared in Part 10 (where you live). However, she didn’t complete Part 15 (other people that live with you), as she thought she had already declared her mother on Part 10.

It now turns out that the DWP awarded SDP & EDP based upon the form, which means she has been overpaid a large amount. I’m just looking for everybody’s opinion on the chances of getting this written off as official error?

Has she kept a copy of the form? Only Part 10 is “About permanent health insurance”.........

The IBR LEAP version of the form has differently numbered sections than the regular ESA3:
https://www.whatdotheyknow.com/request/electronic_esa3_form_out_of_date

On that form, Part 10 is about if you have lived with someone “as part of their family”

Part 15 is about “any other people who have lived in the same household as you”. It also says “Do not tell us about ...  members of your immediate family, if you live with them in their household”

The past tense is used throughout this version (“have lived” etc) due it being the form used to identify past underpayments.

If you don’t try to challenge the OP, then you’ll never know whether it can be overturned.

However, you would need to be able to demonstrate either or both a lack of failure to disclose and/or a lack of misrepresentation.

Otherwise you’re trying for discretionary non-recovery which isn’t something they seem particularly minded to grant now that DWP Debt Management are operating like the Camora….

1 - you always challenge because once you’re at the appeal stage recovery ought to cease which is useful in itself for all sorts of reasons.

2 - I have had a specific case around a claimant failing to provide the information on one part of a form but providing it another part, albeit the wrong part and in passing. Funnily enough also to do with the alleged failure to disclose another person. The test is not one of disclosure in the right place but “disclosure”. My recall is that was a fairly straightforward win. DWP tried both failure to disclose and misrepresentation but fell flat fairly quickly on both. If the disclosure is there then they have a problem. If there is an obvious inference to be drawn from said declaration and DWP don’t do it then they have a problem.

Notably my tribunal also pointed out that it had been open to DWP to reject and return the claim pack as incomplete but, having decided to not do that, they were then bound to act on all the information within and an argument about it not being in all the places it ought to have been was moot if there had been a disclosure which put them on notice of a matter to be addressed.

Thank you for the replies. I will be advising her to appeal but the points raised will be extremely helpful.