My client was a student nurse who had to leave her course due to ill health. She was paid a monthly bursary, the last month being paid in error and SAAS are asking for it back. Because she had this payment she was not awarded backdated IS for the period covered by the bursary, and thus has not been awarded HB for that period. I want to appeal the IS backdating decision, but I have a nasty feeling that there's not much mileage in this, as even though the bursary was an overpayment and she has to repay it, she still "had" the money at the time of applying for IS.

Please can somebody tell me that I'm wrong and come up with a lovely regulation/commissioner's decision to prove it.

Thank you.

The decisiion you want is Leeves v Chief Adjudication Officer (1998) CA, reported as R(IS) 5/99 where it was held that:

"but, distinguishing R v. Bolton Supplementary Benefits Appeal Tribunal Ex p. Fordham <1981> 1 All ER 50, monies that a claimant was under an immediate obligation to repay did not amount to "income" for the purposes of either the Social Security Contributions and Benefits Act 1992 or the Income Support (General) Regulations 1987;

there was no immediate liability to repay a precise sum on the date the course was abandoned, but after the local education authority invoiced the claimant on 24 May 1995 there was an undisputed and immediate obligation to pay and, accordingly, the portion of the grant which related to the period from 24 May 1995 lost the character of income from that date".

I don't know whether that will help or not on the facts of your case.

Thank you, I think I love you! That's exactly what I was looking for!

Hello again

I've finally had the papers through for this appeal - 7 days before the hearing. The point that the DWP are disputing is now whether or not the course was abandoned. She has left the course and has left it with the college that she may resume it in May next year, and they are keeping a place open for her. However, there is no guarantee that she will be well enough next year to resume her studies.

Has her course been abandoned, and does the non/abandonment have any bearing on whether or not she is entitled to IS for the period in question, ie, when the bursary was overpaid?

Any thoughts welcome.

Actually, come to think of it, should the DWP not have issued a new decision notice on this, or can they change their mind about why they're not going to pay somebody mid way through an appeal?

They say that she wasn't entitled to IS at all until she qualified for DLA in September last year, and yet have paid her since July.

Even if the course had not been abandoned the dicta in Leeves still holds good as to whether the loan is part of the claimant’s resources or not. However, this might be an academic point if she is prevented from claiming IS in the first place because she is still a student who cannot claim IS. The question of abandonment is a question of fact and you would need to get evidence from the college as to her current status. Is the college holding her particular place open for her and she is still on its rolls or is the college just saying that she can re-enrol next year and take up where she left off?

A decision maker can raise new points during the appeal process as new facts come to light as long as those fact go to the heart of entitlement to a benefit but must give the appellant proper notice of those facts and the case she needs to meet. Flexibility in proceedings has always been at the heart of social security tribunal proceedings as long as that does not cause unfairness or breach statutory requirements.

It is not in the claimant’s interest, for example, to delay proceedings further by issuing a fresh decision, prompting the need for a fresh appeal when she needs the case to be heard as soon as possible.

It is the role of the tribunal to stand in the decision maker’s shoes and invite a complete hearing of all the issues that go to the heart of an entitlement decision

Thanks for that - very helpful even if it wasn't what I wanted to hear.

It seems that there is not much chance of success here - her college still have her registered as a student and she was not awarded DLA until September, so she would not qualify for IS until September. So she's been overpaid, but at least we've got a solid case for telling them to stuff off when they try and recover that.