Permitted work. Overpayment due to working 16 hours
I had the below client query -
Client was advised by an adviser at another organisation he could work 16 hours per week without jeopardising his ESA claim. However in Jan 2018 he was then hit with a £1300 overpayment because the regulations state it is ‘less than 16 hours’ and he was working exactly 16. He says he was told he could work 16 with no problems.
To be fair it seems a bit strange to me to be able to earn 16 hours worth of minimum wage (the upper permitted earnings limit of £125.50) but not actually be able to work 16 hours. Would it not make more sense if it was 16 hours max?
Anyway is there any point him appealing based on being misadvised? I seem to recall DWP only really going for that if it is DWP themselves giving the incorrect advice but is it worth a shot?
Had the client told the DWP that he was working?
If he did then the DWP would have asked him to complete a PW1 form and should have realized from this that he was doing 16 hours and stopped his claim at that point - which would have avoided the overpayment arising.
If he didn’t tell them then I think he may be onto a hiding to nothing in terms of disputing the overpayment - he’ll need to take it up with the people that advised him previously as not only did they give the wrong advice re. the hours limit but also about not declaring the work to the DWP.
Agree with you that it doesn’t make sense that the earnings limit and the hours limit don’t match.
Always a point in appealing the recoverability of all social security overpayments in my experience because you can stop recovery pending the hearing and the discovery of documents can lead you down some unexpected roads. In this case I’d say it’s definitely worth it as there’s a likely official error. How does a claimant get to do permitted work without the DWP being in full possession of the facts re: hours; rate of pay etc? Permitted work has to be… well, you get the gist. Who failed to notice that it was exactly 16 hours?
DWP argue that only they are entitled to give such advice right up to the point you point out it was wrong, rubbish, misleading etc. In the past I have won a case when the security guard at Albert Bridge House incorrectly advised a visiting claiming what to do with their sick note. He had no badge on indicating he was working for a private company and the tribunal accepted that age old concept of “mistaken belief, reasonably held”. He was entitled to believe he was being advised by DWP. Also won a “... man in a pub told me… ” case where the man in a pub used to work for the DWP so “knew” stuff.
Good stuff, thanks Sam and Mike.
That’s a good question Sam, now you mention it that’s a very obvious point, did he notify DWP or just assume based on incorrect advice he did not need to. I will check this with him!
Appeal it is!
‘In determining the number of hours worked an averaging approach applies varying according to whether there is or is not a recognisable cycle and whether the claimants hours fluctuate. ’ Sweet Maxwell Vol1 page 1100 foot note to ESA reg 45. It is worth looking at what the contact was with the employer in theory and practise and looking at each week to see if they were entitled,v