ESA Appeal for Overpayment - Failure to Disclose?

I have a client, registered blind whose preferred format is Braille, who has been overpaid ESA as a result of her husband (also blind) receiving two Occ Pens for several years and not disclosing them to his wife therefore ESA(IR) were unaware of these Pensions.

Sec of State claim that they received information from HMRC (no information in their submission about this or the date they were informed) that her husband had these pensions. They then sent out a compliance officer.  The visit revealed that wife didn’t know and husband declared he wasn’t aware of them either.

A few weeks later when husband was discussing funeral provisions with his wife disclosed them to her. She then called the Compliance officer and sent in the bank statements (following closure of this account due to his ill-health) to the benefit centre. This was October 2014.

In September 2015 the BC made a decision that wife had been o/p ESA from June 2013 (date of claim) to January 2015 (date of husbands death).

I have a two queries here: 1. wife was a braille user and could hardly be expected to make reasonable findings on her husband income, and relied solely on what he said his income was when claiming ESA… 2. Why did the BC take over a year to reduce her ESA

Do you feel I have grounds to get this o/p wiped?

Cheers :)

Well, I’d certainly be challenging on basis non recoverable due to official error from Oct 14 onwards. As for the earlier period, she can’t fail to report a change of circs of which she was unaware so I’d be challenging recoverability on that basis.

My thoughts exactly. This is why I was concerned that SoS had failed to put in notification from HMRC about the pensions, how long were they aware of the pensions prior to sending out the Compliance Off!

Thanks for your response :)

Always worth challenging o/ps in a climate where many documents are destroyed after 14 months. I would be shocked if HMRC did actually provide any paperwork though, whether they have it or not. Their reputation for accurate paperwork in appeal papers is, er, non-existent.

Anyone have any case law on failure to disclose whether innocent or ignorant?

Not sure you need it. You can’t fail to disclose anything if you didn’t know it in the first place. There is caselaw on that but I’m not sure that’s where the issue will be. More likely you will need the caselaw, which DWP quote repeatedly in appeal papers, that says something to the effect that, whilst you may not have known the material fact, given the circumstances as a whole you ought to have known it. That’s potentially very interesting. Can anybody remember the decision? DWP quote it ceaselessly out of context so it’s worth having sight of so that can be addressed.