I've just taken on an overpayment case- client on IS on the basis of IFW whilst working (part time)

The IFW decision (11 months ago) is that she is to be treated as capable of work for the entire period of her claim

I intend to argue for a reduction on the basis that she qualified for IS as a disabled worker (following R(IS)10/05)

The potential problem is that she can only qualify as a disabled worker during weeks that she actually worked and the evidence clearly shows that there were weeks that she didn’t work.

The potential solution is to argue that she should only have been treated as ‘capable of work’ during the weeks that she actually worked. This means challenging the IFW decision.

The question is this: she has appealed the IS overpayment decision. Will it be within the Tribunals Jurisdiction to consider the IFW decision or does she need to lodge a late appeal against it and get the two appeals heard together?

In CSIS/73/2005 Commissioner Parker held that a tribunal is able to carry out a revision or supersession of all the decisions made on the claimant's income support award during the overpayment period even though these decisions are not before it. In doing so she cites the
tribunal of commissioners decision R(IB) 2/04 which holds that a tribunal is not limited to matters raised by the appeal and that it 'may make any decision which the officer below could have made on the legal questions properly before that officer'.

Given this, I feel that your client need only appeal the overpayment decision.

What do other people think?

(A summary of CSIS/73/2005 is available in the briefcase area of rightsnet togetrher with a link to the full decision avaialable on the osscsc.gov.uk website).

I might well have misunderstood but it seems that they made a negative IFW decision, but didn't stop her IS until some time later. Or did they stop her IS at the same time as the IFW decision but not give the overpayment decision until much later.

I think this is important because I think its the IS decision that is the 'outcome' decision ie the one that actually says whether she is entitled to benefit. If that one has been appealed the Tribunal can take into account any changes up to the date of the decision. If theres no IS decision then I can't see how they can decide that there's been an overpayment and they will need to make the IS entitlement decision. There is a case about this but not got time to look for it now, will have a look tomorrow maybe.

The answer is that you don't need to appeal. Sec 71(6) and Reg 13 of the Overpayments regulations are the answer.

Using those powers the tribunal has to determine what would have been paid had the claim been properly presented. They are not, in so doing, actually making decisions (in terms of revising or superseding previous award).

Just don't worry about it basically.

(Paul sits opposite me at work and we are reduced to communicating via the internet, what a life).

Pauls query reminds me of what I thought was an odd letter I recieved from The Appeals Service a few months ago.

The case in question was an IB overpayment appeal. The client admits working for some of the period in question. We are arguing that there should be no overpayment for the weeks she did not work.

While awaiting an appeal date I recieved a letter from TAS stating that 'the District Chairman has asked whether you are aware that the appeal is only against the overpayment decision, not the decision revising entitlement'.

I was puzzled by this and it did go through my mind that it was implied that we needed to appeal the actual entitlement decision in order to challenge the overpayment. The logic being that as she has admitted she was not entitled to the IB for the period concerned (by not appealing) then she cannot now argue that she has not been overpaid. Both decisions have to be before the tribunal. I dismissed this at the time for reasons as set out by Martin above and did not appeal. We were beyond appeal deadlines anyway.

However, I have a new client with a decision saying he he not entitled to IB from 21/2/00 - 19/11/04 because he was working (which he disputes) and the 1994 decision awarding the benefit has been superceded on the basis of a change in circumstances. We have no overpayment decision yet.

Do I need to appeal this decision or wait for the overpayment decision? I cannot recall ever seeing such a decision without it being part of overpayment appeal papers. Does the district chairman know something I do not in relation to the other appeal?

I know this may have already been answered but note some possible conflict in opinion so want to ne clear.

Thanks

I would advise you to appeal the disallowance decision as it could be some time before you get the OP decision.

I was at Tribunal this week with a similar situation- where JSA (IB) had been disallowed retrospectively because of capital. At the hearing both the rep and the Chairman were looking at the OP aspect, discussing recovery etc, when I pointed out that there was no OP decision and that the decision under appeal was that claimant was not entitled to JSA because he had more than £8k. The Chairman was annoyed that there was no OP decision but agreed that he could not consider the matter. Disallowance decision was upheld and I've asked for the OP decision to be done asap so that the rep can ask for recovery to be waived.

Hi Judith,

I do not understand what the point of the appeal against the entitlement decision in your example was. The claimant would have already had the IS in the past (when he may have not actually been entitled to it).

Surely the important thing for the claimant is whether he will have to pay the IS back. As there has been no overpayment decision then I presume the DWP cannot recover. When the overpayment decision is made then I would expect the claimant has a right to appeal this. You seem to indicate that the rep can 'ask' for recovery to be waived ie ask the Sec of State to use discretion not to recover, rather then the Sec of State being told by a tribunal that he cannot recover.

So what bearing does the disallowance decison have on any future overpayment appeal? I cannot imagine that it will bind a tribunal determining overpayment issues as the two issues, though related, are technically separate.

If the supersession/revision decision removing entitlement is completely badly made (ie inadequate to properly remove entitlement for the o/p period) and you appeal this as well as the overpayment decision then the Tribunal is in a position to correct the revision/supersession and you are potentially depriving your client of an opportunity to run a Sec 71(5A) argument.

I (once) rather cynically withdrew the appeal against the disallowance decision (which was simply a "stop paying benefit from today's date" supersession before a tribunal which had both the appeals before it. Thus depriving the Tribunal of the power to sort it all out.

Of course, if the supersession decision also relates to current entitlement and the appellant has a substantive case that they do have an ongoing entitlement the situation is different.

Thu 10-Nov-05 11:02 PM by shawn

Paul,

Commissioner Mesher may have ridden to your rescue in this case with a way to argue that NONE (or at least less) of the overpayment of Income Support is recoverable.

Sorry this post is a little tentative but here goes (and sorry for requoting great chunks of Mr Mesher as if it was my own prose but easier that way):

See the decision in CIB 1599 2005 -

(This all assumes that your client was receiving Incapacity Credits and not Incapacity Benefit. It also assumes that the client started the work AFTER the date on which she was awarded credits.)

Essentially what the Commissioner is saying is that the decision to end entitlement to credits from a date before the date of the decision cannot be effective from any date prior to the decision in his case. Maybe the same can be said to apply in your case.

This is because the only ground for supersession from the earlier date would be change of circumstances. Whether the change is effective from the date of change is determined by Regulation 7(2)(c)(ii) which provides (omitting the references to disability benefit decisions):

"(2) Where a decision under section 10 is made on the ground that there has been, or it is anticipated that there will be, a relevant change of circumstances since the decision was made, the decision under section 10 shall take effect--
...
(c) where the decision is not advantageous to the claimant--
(ii) in the case of ... an incapacity benefit decision where there has been an incapacity determination (whether before or after the determination), where the Secretary of State is satisfied that in relation to ... the incapacity determination, the claimant or payee failed to notify an appropriate office of a change in circumstances which regulations under the required him to notify, and the claimant or payee, as the case may be, knew or could reasonably have been expected to know that the change of circumstances should have been notified,
(aa) from the date on which the claimant or payee, as the case may be, ought to have notified the change of circumstances, or
(bb) if more than one change has taken place between the date from which the decision to be superseded took effect and the date of the superseding decision, from the date on which the first change ought to have been notified, or


If that is not satisfied then the change is effective from the date of notification under Reg 7(2)(c)(iii):

(iii) in any other case, except in the case of a decision which supersedes ... an incapacity benefit decision where there has been an incapacity benefit determination (whether before or after the decision), from the date of change."


The critical piece of this is "the claimant or payee failed to notify an appropriate office of a change in circumstances which regulations under the required him to notify"

The only possible relevant regulation is regulation 32(1) to (1B) of the Social Security (Claims and Payments) Regulations 1987, as in force from 6 January 2004:

"(1) Except in the case of jobseeker's allowance, every beneficiary and every person by whom, or on whose behalf, sums payable by way of benefit are receivable shall furnish in such manner and at such times as the Secretary of State may determine such information or evidence as the Secretary of State may require for determining whether a decision on the award of benefit should be revised under section 9 of the Social Security Act 1998 or superseded under section 10 of that Act.
(1A) Every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner and at such times as the Secretary of State may determine such information or evidence as the Secretary of State may require in connection with payment of the benefit claimed or awarded.
(1B) Except in the case of jobseeker's allowance, every beneficiary and every person by whom, or on whose behalf, sums payable by way of benefit are receivable shall notify the Secretary of State of any change of circumstances which he might reasonably be expected to know might affect--
(a) the continuance of entitlement to benefit; or
(b) the payment of benefit,
as soon as reasonably practicable after the change occurs by giving notice of the change to the appropriate office--
(i) in writing or by telephone (unless the Secretary of State determines in any particular case that notice must be in writing or may be given otherwise than in writing or by telephone); or
(ii) in writing if in any class of case he requires written notice (unless he determines in any particular case to accept notice otherwise than in writing)."


You will need to check whether the Reg 32 duty was in meaningfully different terms during the period when the claimant was working


"Benefit" is defined in regulation 2(2)(b) of the Claims and Payments Regulations as including any benefit under what used to be the Social Security Act 1975, plus other benefits such as child benefit, income support, state pension credit, jobseeker's allowance etc. Although that is an inclusive not an exhaustive definition, the meaning cannot extend beyond the benefits mentioned. That is because the power to make the Claims and Payments Regulations and to amend them lies in section 5(1) of the Administration Act and its predecessors (see in particular section 5(1)(j)). Section 5(2) limits the application of section 5 to benefits as defined in section 122 of the Contributions and Benefits Act, jobseeker's allowance, state pension credit, housing benefit, social fund payments under section 138(1)(a) or (b), child benefit and Christmas bonus. None of the extensions in subsections (4) to (5) apply to credits.

Therefore the claimant was not under a duty to report the change!

As the Commissioner says:

"The upshot is that the requirements as to notifying changes of circumstances in regulation 32 of the Claims and Payments Regulations do not apply in relation to decision merely awarding or allowing credits or finding the conditions for entitlement to credits satisfied."

"16. Accordingly, in my judgment an essential condition of the application of regulation 7(2)(c)(ii) cannot be met in the case of a supersession on the ground of relevant change of circumstances of a decision awarding credits on the basis of incapacity for work. There cannot be a requirement to notify the change imposed by regulations made under the Administration Act. Therefore, accepting on the facts found by the appeal tribunal here that the decision of 22 March 2000 did fall to be superseded on the ground of relevant change of circumstances, the superseding decision could not take effect before 14 September 2004 and could not operate so as to remove any entitlement to credits in the period from 2 April 2003 to 24 October 2003."

HOWEVER, several issues arise in running this argument in your case:

1. Was the claimant required to notify the change for Income Support purposes under Reg 32? Does this failure to notify for Income Support scupper her in terms of giving the Sec of State a power to supersede her entitlement to credits effective from the earlier date? Reg 7(2)(c)(ii) does not state that the duty to notify under the regulations has to be a duty to notify in relation to the benefit being superseded: however it may be arguable that this is what it means?- it is not clear from the Commissioner whether the claimant in that case was getting Income Support at the relevant time. This needs some thought to get around it.Any ideas?

2. Even though the supersession of credits may have been completely unlawful as to its effective date, as you have not appealed against it what can the Tribunal do? Surely they are bound to accept the decision at face value? Sorry but this reraises your question as to whether you should have appealed that decision in a rather different light.

3. In any event couldn't the IS decision maker still take account of the actual wages in his supersession (is this supersession before the Tribunal or not?- that is also important).

4. Perhaps the most you can hope for is as the credits decision could not be effective from the early date then the claimant must continue to be treated as a person incapable of work for the whole period (thus at least adding the Disability Premium into the pot for calculating the amount of claimant entitlement).

Something for you to be getting on with anyway

Martin.

Woops. Just reread Paul's posting:

"The IFW decision (11 months ago) is that she is to be treated as capable of work for the entire period of her claim"

I guess that means the credits decision was one on revision and not supersession... in which case forget it.