ESA Permitted work
Client on ESA (WRAG). Started permitted work after asking JC+ & being told could work 16 hrs (this is her recollection, & she says she can’t recall being told anything about an earnings limit). She started on 10.5 hrs/wk @ £9.40. Later her health improved somewhat & she went up to 16.5 hrs with total earnings about £150 p wk.
Soon after, she had a compliance interview - not IUC & not recorded. Compliance officer wrote a report of interview which client read & signed as correct. It states she declared all her hours & earnings. It says nothing about her exceeding permitted work limits & ends by saying she understands that if she has been overpaid she will have to repay it. She has no recollection of being told she was exceeding the limits & says if she had been told she would have stopped doing so straight away. She continued with the same hours for almost a year after the interview until her health declined again & she reduced to the 10.5 hrs. She has heard nothing from DWP about any overpayment.
She needs to declare the overpayment but I’m concerned that DWP will terminate her ESA award if she does. This will result in her having to claim UC & losing benefit. Does anyone have any knowledge please of whether DWP do terminate awards in this sort of case, or might they suspend it while they investigate & then allow it to continue?
I have had several cases over the years which involve clients exceeding the permitted work limits ( hours and or pay) for a limited period of time but DWP not finding out until afterwards ( and at time of discovery clients were within the PW limits again)
In all these cases ESA have raised overpayment of benefit decisions for the fixed period(s) the PW rules were breached but the claims continued in payment
In your client’s case , the compliance officer ( CO) recorded that she was working 16.5 hours pw / earning £150 pw so clearly exceeding PW rules on both counts, the CO should then have referred case to an ESA DM to review so odd that she has heard nothing
Not sure why she would have to declare an “overpayment” to ESA as she has already reported the changed hours / pay to the CO ( and she has proof of this via the signed statement) so it was / is up to ESA to review her award
She is now back within PW limits from the date her hours reduced to 10.5 ( and assuming pay is within limits) so it is up to her if she wants to be proactive , in the sense of reporting to ESA the fact her hours have reduced to 10.5 ( as the statement she gave to the CO was she worked 16.5) – but doing this might then prompt the review of her ESA award which should have happened earlier
She could decide to do nothing as she is now within PW rules and as stated above has already declared material facts to DWP / ESA about when she did exceed the PW limits and respond to ESA if they do belatedly review award
Finally, if an OP ESA decision is subsequently made she would have grounds to challenge that this is recoverable from him on basis that 1) she was misadvised by JCP re PW rules, so “official error” was involved (helps to have evidence of this of course!) and 2) that they continued to pay her after the facts were reported to them about increased hrs / pay
Many thanks - this is helpful & very seductive, as I’m concerned that DWP may terminate her award (as EAT tell me the ESA Regs 2008 - 40 (1) & 44(1) require) & she will then have to claim UC & will lose money & probably have a lot of stress (she has mental health issues).
She did go on exceeding the limits for a year after the compliance interview. I know she can argue she told them what she was doing & was not told it was wrong but do you think this would be likely to be accepted in view of the long period? There is also the effect on her HB & CTR - both of which have been overpaid - & the Council do not know what her income has been. It is these factors which have made us think she needs to report. I’d be grateful for any other thoughts you may have.
HI Surrey Advisor - so your client was/ is also in receipt of HB/CTR
1) I understand what EAT have told you as to what should happen with the ESA claim - I am just letting you know what has happend with cases I have had exactly like this and, in all of those, as ESA decided to continue to pay my clients I was not going to argue !
2) HB/CTR - she probably has been overpaid these for the period PW limits were breached. However, assuming she receives IRESA , this “passports” her to max HB. She is required to report changes that may affect the amount of her IRESA (which she has done albeit belatedly) but I understand as per HB regs 88 and 69 she does not have to report these to HB in a passported case ( HB Anorak/ Elliot Kent what do you think!)
If her IRESA continues in payment then she remains a HB “passported” case - so it may be arguable she does not have to further disclose the change in wages/ hours which occurred some time ago - however this is a decision she has to make
I assume her ESA does not include the SDP and therefore she may not already receive DLA/PIP - if so could she be eligilbe for PIP DLC - if so and then the SDP became payable ( eg lives alone/ no CA in payment etc) in her ESA/HB then she would be protected from having to claim UC
[ Edited: 18 Mar 2019 at 07:57 am by stevemac ]
I have had a client in the same position. She exceeded her hours and earnings limits and incurred overpayments for 2 periods, however her CBESA claim continued. Not saying it would happen in every case but, like Steven, I wasn’t going to argue. The overpayments did not come to light immediately.
Your client’s ESA shouldn’t stop. There was a past period through which ESA was not payable - but it is payable now when the decision is being made. This means that the DM can conduct a “closed period” supersession - i.e. a decision that your client was disentitled for a fixed period in the past without stopping the award going forward. See DMG 04117.
I am very reluctant to go anywhere near the question of your clients disclosure obligations without the full facts.[ Edited: 18 Mar 2019 at 12:00 pm by Elliot Kent ]
Many thanks for the replies. As so often, this forum comes up trumps!
Soon after, she had a compliance interview - not IUC & not recorded. Compliance officer wrote a report of interview which client read & signed as correct. It states she declared all her hours & earnings. It says nothing about her exceeding permitted work limits & ends by saying she understands that if she has been overpaid she will have to repay it.
Do you have a copy of the report? If so, does it state expressly that the client was working 16.5 hours p/w?
It says “I started to work for the company from ../../2016. I work 10 hrs per week at £.... per hour. I have been shown an EQ1 form by the Compliance Officer and agree to the information shown. I have also provided all my payslips to the department to confirm the amounts I have earned. On the ..th of …… 2017 I also started working for…………………………………… I work 6 hours per week at £..... per hour”
It thus shows a total of 16 hrs per week with a total income of about £149 per week. (I have omitted the dates & hourly rates. There is a minor error - the 10 hrs in the report should be 10.5). The interview was on 2.10.17.
Note it says “I work…” not “I worked” and “I also started ....”. I think a cursory read would make it clear client was then doing both jobs & a simple calculation would show the income limit was exceeded.
I’d be intereted in any comments you have.
The minor error is not material because permitted work requires the claimant to be working for less than 16 hours per week (unless it’s via the supported/supervised work route, in which case there is no hours requirement) - the omission of the 0.5 hours makes no difference as the 16 hours scuppers her anyway…..
That said, whether or not prompted by the DWP, there can be no real argument that disclosure was made as at the date the form was signed. There could, I suppose, if a specific (as opposed to general) duty to disclose was invoked, be an issue as to whether disclosure was made to the appropriate office, but it’s also difficult to imagine circumstances in which a compliance interview might be instigated other than by the appropriate office (i.e. the office paying the benefit). Maybe a DLA/PIP compliance interview? But I can’t think of anything else…..
Initially, I thought there might not be any obligation for further disclosure now - i.e. to the effect that earnings/hours have been reduced. But the ESA40 states that claimants must disclose if, amongst other things,
you or your partner’s work situation changes
the amount of money coming into your house changes
The UT has recently decided that a failure to inform the ESA office when DLA stopped was a breach of a specific obligation to disclose because the same leaflet tells the claimant to report:
Any changes to do with pension income, benefits and allowances.
Also tell us if you or your partner start or stop getting any pension income, benefits or allowances. Tell us if the amount of money you or your partner are getting changes.
If you are not sure if we need to know something, tell us anyway.
So that kind of ‘catch all’ would appear to cover the situation your client is now in - i.e. the present change (reduced hours/earnings) will not affect entitlement or the level of award, but she is obliged to report it…...
I’d like to be convinced otherwise, however, so over to everyone else.