ESA Overpayment and Appeals

Hi

I have a client with ESA overpayment which we are currently going to appeal - No MR as of yet (we have decided to go to the FTT to see if they can force a decision - sent 2 MR requests and been ignored completely) so I only have the short Decision Letter to work from.

The decision is the client was overpaid IR-ESA for the period 31st July 2020 to 1st June 2023 due to “having a partner who was in remunerative employment” - I’m assuming there argument is that they are now classed as a couple for IR-ESA purposes.

However, client is disputing this - they initially started their relationship on 16.8.19 but were living separately, running separate households etc. They moved into the same household on 30.11.22 which is when the couple became “official” as they were in the same household, splitting bills, splitting childcare etc. Client agrees that an overpayment occurred from 30.11.22 to 1.6.23 and is happy to pay that amount, however the dates before that she is disputing.

Is my argument that for the period of 31.7.20 to 29.11.22 that no overpayment occurred because they were never a couple for IR-ESA purposes?

Any help is greatly appreciated.

Thanks

Adam

The short answer is ‘yes’ - if not living together as husband and wife / civil partners they should not be treated as a couple for benefit purposes.

The longer answer is - is there any evidence that he maintained another household elsewhere?  Where was he registered for GP?  With his employer? The more paper evidence the better. 

The issue with these cases that I’ve had in the past has been the lack of evidence of a ‘household’ elsewhere - they always seem to be sofa surfing / living with parents or grandparents / using their partner’s address for post and everything else.  It doesn’t mean they’re not winnable but there’s usually had to be a hearing with a credible claimant who has been effectively taken advantage of.

Also - evidence / reasons of why they moved in together when they did might help.