I’m dealing with an IS o/p on grounds of LTAHAW. Allegation not denied, but amount of overpayment is disputed on the basis that partner was not always in employment or on benefits, so periods of time when the couple were living on nothing but the single IS claim (claimed due to sickness)

SOS has tendered evidence in the form of a computer printout of partner’s NIC records for the 2 years in question. However, on these printouts there are a variety of different entries – C1A entries which I assume relate to class 1A contributions, but also CR1 and CR3 entries which I can only assume relate to National Insurance Credits. Each entry has a corresponding earnings factor and the SOS has taken an average of all the earnings factors and divided by 52 to show average weekly earnings.

I have 3 issues with this – firstly the majority of the earnings factors relate to the CR1 and CR3 entries, secondly for each of the years there are well over 52 conts/credits and I assumed the maximum that there could possibly be in a year would be 52 as they are paid weekly, and thirdly taking an average to work out weekly earnings does not prove that the partner worked on each particular week in the years in question.

Has anyone ever seen one of these printouts or the practice of taking averages? Does anyone know of any case law regarding this sort of issue i.e. reliability/credibility of evidence tendered by other side. Any suggestions would be very gratefully received.

there definitely should not be more than 52 credits in a year, and like you i can't see why they are lookingf at average earnings. you are disputing the overpayment calculation - i'm guessing that the decision calculated all the benefit paid to woman was overpaid because of living together, when, had the correct facts been known, there would have been periods of entitlement within the calculated overpayment period.

it sounds like there's a problem with establishing the correct facts, and the C1A evidence soundls like it's offered as the only available evidence, and i doubt that it will do the job. it may not be worth worrying too much over it...

it's going to be in your client's interests to establish the periods of working, claiming, and neither claiming nor working, in order to reduce the amount of the recoverable overpayment - there are some interesting burden of proof issues - DWP should have determined entitlement questions before overpayment calculation...what the DWP need as a starting point is the dates of periods of remunerative work - if your client can give them the name of the employer, they can obtain all the employment information they need for the calculation of the overpayment from the employer on a form QB9 - i think their inspectors have enforcement powers for QB9 completion...if there's a problem with establishing the facts then balance of probability comes into it - C1A may point to periods of employment, periods of claims, but no use i would have thought, in averaging earnings into a period when no work was done...????

"all the benefit paid to woman was overpaid because of living together" - my assumption based on nothing you said - of course your client could be a bloke... i'll go sit on the naughty step...

Thanks, jj

Yes, they are claiming overpayment for the whole amount paid to the client for the whole period as you surmise. Unfortunately the client does not have access to the partner's employment history as they have since separated on bad terms and are no longer in contact with eachother. I suppose my argument will be based on SOS's failure to discharge burden of proof...

If a person has received NI credits, then they must also have claimed some other benefit: IB/SDA/incapacity credits, JSA or CA. There will be some other JobCentre Dept which should have a record of these claims. You might need to do a lot of digging.