My client has been told that as Appeals Service Tribunal who considered his entitlement to Income Support on ill health grounds found against him, all the reduced rate Income Support he was paid (preferring not to claim JSA) from the date at which he launched the appeal against the DWP's PCA decision, was overpaid and must be repaid.

The DWP are holding £120 owed to him in JSA to reduce the overpayment.

I enquired on his behalf and Makerfield IS dept confirmed the above and said that he should as for backdated JSA from the date of the appeal to help further reduce the overpayment.

This sounds decidedly dodgy to me and is clearly a disincentive to appeal against PCA decisions.

Are we being advised correctly by the DWP? Has anyone else come across similar situations?

Thanks for your help.

Fri 13-Jun-08 10:01 AM by shawn

Have heard of this a couple times recently - we've got a client (housing case which I'm not dealing with directly) where they've been told this over the phone, but no written overpayment decision yet. I've also seen at least one other posting on the forum from an adviser asking for help when the DWP have tried this on. I believe that case came from the Makerfield office, as does ours.

To be clear, there is absolutely no overpayment in these cases - in order to qualify for IS claimants have to fall within a "prescribed category" (reg 4ZA IS regs) and schedule 1B lists these categories. Paras 24 - 27 of the schedule provide that "Persons appealing against a decision (which embodies a determination) that they are not incapable of work" remain entitled to IS until the determination of the appeal. And reg 22A provides for a reduction in the applicable amount of those who are appealing such a determination - unless they fall within one of the other paras of Sch. 1B (ie. they're entitled to IS via another route).

Nowhere in the legislation is there anything to suggest that those whose appeals fail (or even those who withdraw their appeals) will have been overpaid. And besides, upon what change of circs and what misrepresentation or failure to disclose do these idiots propose to found recovery?

Minor bit of social policy work needed here?

This damn new forum softwear.... above post should have the "which embodies a determination" bit in square brackets. Went back to edit, thinking I'd forgotten to type it in - but it's there and just doesn't show.

in fact its not a new thing ... the forum has always used square brackets for formatting purposes (for example you placing the word 'no' in italics in your posting) .... if you use them for any other purpose, it doesn't like it .. have edited your post to place the missing words in normal brackets

cheers - shawn