Appeal against IS Overpayment!

Rosie,
Look at this thread, might be helpful: http://www.rightsnet.org.uk/forum-archive/index088d.html  An appeal may be helpful only in staving off any recovery action.  If your client had over £6k (or + £16k) undeclared, for whatever reason, it will be a fact that she had it, regardless of the situation with her ex partner. You might want to look at the waiver links in the above thread,given that recovery is discretionary, but I suggest that you might want to use a Common Financial Statement (eg from CAB) to limit repayments.
There are Commissioner’s Decisions (eg CSB/1093/1989) about mental health issues, but there remains the Catch - 22: ‘it does not avail a recipient of benefit from whom the SoS seeks repayment of benefit on the grounds that he misrepresented a material fact to deny that he had mental capacity to make the representation’ (Judge Millett).

It’s essential to appeal all overpayments because so many are inflated and/or not recoverable.

If this is undeclared capital:  1)  Has DWP and LA done a diminiution of capital calculation (which usually reduces the OP)?  2) Have the proper prcocesses been followed around notifying her of the decision revising her entitlement?  3) Would need more information, but I do womder whether the money might not be part of her capital if it could be shown that it belonged to the people who lent it to her for a specific purpose and therefore the money she built up to repay was beneficially owned by her creditors?

Looks to be no case on the facts (see B -  http://www.bailii.org/ew/cases/EWCA/Civ/2005/929.html ) but don’t let that deter you from advising your client to appeal against the recoverability of the overpayment -see commentary to S.71 of the Social Security Administration Act 1992 in Vol III of Soc Sec Legislation (Rowland and White), in particular that there must be evidence of a valid entitlement decision on which the overpayment decision is based as a precondition of recovery. The entitlement decision must be a valid supersession/revision of the awarding decision (though it doesn’t much matter if they call it a revision when it’s a supersession or vice versa). It should identify and revise all affected decisions over the period of the overpayment. Decision attached may be of use in dealing with the Department trying to cover any gaps in the evidence through ‘certifying’ decisions that they can’t otherwise prove.

In my view the only exceptions to appealing an OP is if a deal has been struck not to prosecute or if the evidence is that the OP should be higher!

Re: Neil’s posting above under 3); I like the argument, but for creditor’s claims against capital see R(IS)21/93- ‘incumbrance’, in particular that ” ...Capital is subject to an incumbrance if a creditor has a secured right to resort to it (or prevents its disposal) until satisfaction of his debt in preference to that of any unsecured debtor”
Although there is a moral claim by the creditors if a loan was taken out with the express intent of repaying them, it doesn’t give a ‘secured right to resort to it’.

Yes agree, but it all depends what the terms of any agreemant are (see recent UTD on overdrafts - sorry can’t recall citation offhand). 

Often these are informal, but sometimes one can identify an incumbrance and/or something like a specifc purpose payment.  One would really need to get detailed instructions fom the client and evidence from the the creditors.  It’s something to be explored further.

I agree with your two exceptions to appealing the overpayments.  Not that one encounters them that often.

Leaving aside the question of recoverability, it seems form your post that Cl. had this money for a fair period - you say ex was abusing her for 3 years & she presumably still had it when investigated.  If it was to repay loans is she not going to be asked why she retained the money instead of paying the loans back?

Thank you all for the advise. I have advised my client to see me next week with proof of all capital and loans to
initiate a calculation.

Yes, some intersting points have been raised and I will look into them. I think her main reasons for not returning the loans on time was that she was involved in a lot of mess with her ex. There was never the right time to repay the loans as he had initiated a road traffic accident at some point and she was seeking treatment for injury. He cut her finger with a shredder another time and it all happened in those three year. They never lived together but he would call round as and when it suited him.

She was depressed with this situation and traumatised to the extent of not telling anyone about these incidents. I don’t know if these reasons are going to be good enough or not. Family and friends could see she was suffering and they waited for the right time to request repayment of loans.

Can anyone recommend a specialist who deals with these kind of OP appeals and perhaps help her with diminishing capital rule?
I would like her to get the best help available to her. She has been through a lot and does not deserve this.

Which bit of the West Midlands does she live in Rosie? Available help is usually limited to set geographic locations.