Hi,

Im looking for some help with an income support overpayment appeal. I have a client with an overpayment of £14k from 01/02 as he failed to disclose that his wife had started working. Now his reasons for not disclosing are that he was sectioned under the mental health act at this time and he thought his wife would have disclosed it. Plus their relationship had broken down and they finally seperated around the end of 2002 so they were not in good terms for a good year or so before this time. They were being paid the couple rate of IS.

Basically im looking to find out if i have any arguments as im struggling to see one! any help would be appreciated.

thanks Saima

I had a similar case last year on failure to disclose and where the client's mental illness led him being sectioned under the mental health act .
You may be able to argue that the client's mental illness was so severe that he was 'wholly incapable' of recognising a change of circumstances.
Case law instructs that any mental health needs to be demonstrated as so severe at the time when the change of circumstances took place .
Look at commissioner decisions CIS /12032/1996. R (SB) 21/82 and R (SB ) 40/84
It will be helpful if you can obtain medical evidence to prove how severe his mental state was at that time .
I did - he was diagnosed with severe schizophenia at the time and we succeeded at tribunal . O/P was not recoverable .

We have found that in similar cases we have dealt with, it is always vital to calculate the overpayment on behalf of the client, as opposed to relying on the amount indicated by DWP. This is because DWP appear to calculate any weekly overpaid amount by 52, regardless of any other premium or benefit entitlement relevant to the year in question.

We have then looked at the "reasonableness" of whether or not the person in question, was (could have been aware) that there was an overpayment and whether or not they knew what to do in such a situation. Check Caselaw.

Other things like whose name was the claim in, was he/she detained in a secure environment etc can come into play.

Not trying to tell you how to suck eggs, but maybe the above will help.

"Now his reasons for not disclosing are that he was sectioned under the mental health act at this time and he thought his wife would have disclosed it."

The above extract from your post seems to imply he was aware of the need for disclosure! You need to be careful how you draft any submission on this aspect.

I would agree, the play on words could be crucial, hence my question regarding the nature of the section.

What evidence can be provided (if any) to indicate that the section brought about a period during which he was not aware, or be in a responsible position to disclose.

Due to his section, was he actually aware that his wife had started work?