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ESA overpayment - recovery from claimant and apptee R(IS)5/03 - exception ‘apptee failed to use ESA for claimant’s benefit
ESA overpayment occurred when appointee (now ex-appointee and ex-partner) was responsible for my client’s ESA claim.
DWP is attempting to recover ESA overpayment from my client only - the claimant - he is adamant DWP should recover from his now ex-partner/ex-appointee so we have appealed.
I am trying to argue o/p should be recovered from appointee only under para 63 R(IS) 5/03 - first exception - my client alleges she failed to use the ESA ’ for his benefit’.
Judge has yet to issue directions as he (claimant) alleges she (ex-appointee) has subject him to domestic abuse, but they are still living under the same roof, so FtT Judge adjourned hearing as Judge believes ex-partner needs to be made party to appeal but he wants to ensure my client is safe before this goes ahead.
However, the FtT Judge indicated during hearing that we are going to have to present a very persuasive argument regarding the ‘not used for his benefit’ ground.
My client claims ex-appointee was tardy in paying household bills ( but there appears to be no significant rent or utility arrears) that she spent the money on herself but did not buy him clothes or other necessities. Given the acrimonious nature of the ‘relationship’ between the claimant and ex-appointee/ex-partner details on such matters are a little ‘cloudy’.
Any suggestions regarding other areas of spending I could consider with regard to ‘not for the benefit’ issue would be welcomed - indeed any ideas as to how to strengthen the argument would be greatly appreciated.
That’s an interesting one!
Could I ask, to whom was benefit paid? Did he have access to it? What about other benefits apart from ESA?
And was it a couple IRESA claim rather than just his CB claim?
Whilst we are at it - what was the overpayment about? It seems to me that the question from R(IS)5/03 is more about whether the overpaid funds were applied to the claimant’s benefits rather than whether the ESA generally was.
Whilst we are at it - what was the overpayment about? It seems to me that the question from R(IS)5/03 is more about whether the overpaid funds were applied to the claimant’s benefits rather than whether the ESA generally was.
Yes, that was my other question!
Apologises for the tardy reply
1. the ESA claim - which was irESA for a couple - was in my client’s name but he tells me that it was paid into the the now ex-appointee’s own Post Office account as she dealt with all the couple’s financial affairs as he felt too ill to do so - so he claims to have had no access to the money. I did raise the issue in my appeal submission of whose bank account the money was actually paid into as a point which the DWP needed to clarify and the Judge agreed.
2. He states anyway he was too ill to access and utilise the money.
3 Client was also in receipt of DLA higher rate care and mobility which he ‘thinks’ was also paid into ex-appointee’s PO account
4 The overpayment arose because the ex-appointee failed to report the receipt of an occupational pension which came into payment after the appointeeship had been granted. I did point out to my client he must have signed documentation for the occ. pension to be paid but he states he thinks the ex-appointee forged his signature as he knew nothing about the pension. As far as I am aware she did not have Lasting Power of Attorney.
(One has to bear in mind the now acrimonious nature of their current ‘relationship’ when considering his responses.)
Hope this answers your questions.
Apologises for the tardy reply
1. the ESA claim - which was irESA for a couple - was in my client’s name but he tells me that it was paid into the the now ex-appointee’s own Post Office account as she dealt with all the couple’s financial affairs as he felt too ill to do so - so he claims to have had no access to the money. I did raise the issue in my appeal submission of whose bank account the money was actually paid into as a point which the DWP needed to clarify and the Judge agreed.
2. He states anyway he was too ill to access and utilise the money.
3 Client was also in receipt of DLA higher rate care and mobility which he ‘thinks’ was also paid into ex-appointee’s PO account
4 The overpayment arose because the ex-appointee failed to report the receipt of an occupational pension which came into payment after the appointeeship had been granted. I did point out to my client he must have signed documentation for the occ. pension to be paid but he states he thinks the ex-appointee forged his signature as he knew nothing about the pension. As far as I am aware she did not have Lasting Power of Attorney.
(One has to bear in mind the now acrimonious nature of their current ‘relationship’ when considering his responses.)
Hope this answers your questions.
The cl cannot be liable to report a change of circs he didn’t know about so might there be scope to show that he genuinely didn’t know about the pension and that may push the recovery back to the appointee?