Un-spent Income Support leads to recovery of overpayments

An elderly gentleman and his wife came to see us last week. His adult son is living at home, and was (until recently) receiving IS due to incapacity. He also receives DLA (HRC/LRM). It transpires that the elderly couple have been supporting the son, so the son has not spent his Income Support or DLA, and his capital is now around £25,000. DWP found out and carried out an investigation, and they have decided he has been overpaid since 2006, which is presumably when his savings first exceeded the capital limit.

The son has MH issues, and the elderly couple thought they were securing his future by meeting his current living expenses out of their own pensions, and allowing him to save his benefits. They had no idea they were acting improperly.

Does anyone have any experience of successfully (or unsuccessfully) arguing against the recovery of the overpayments in similar circumstances?

1. Has a diminishing capital calculation been carried out? And of course his DLA isn’t affected.

2. Was the son capable of acting alone or did he have an appointee? If he had no appointee then it doesn’t matter that he didn’t understand the implications of his capital on the IS claim - he will have been told to disclose savings. If he had an appointee the failing is laid at his door too, as the acts of an appointee are attributed to him.

3. Has there been no IS review claim since 2006? What if anything was said in such claims about capital? Can DWP prove that it was NOT disclosed?

Thanks Ariadne. He hasn’t received a calculation yet - just the dates his capital was in excess of the upper limit or between the lower and upper limit. Yes, he’s still getting DLA.

No, he didn’t have an appointee - he isn’t so ill that he can’t manage his own affairs.

He had an underlying entitlement to IB, so would have had a few medicals. He failed one and appealed successfully.

He has obviously been interviewed during the investigation - but I don’t have any paperwork yet.