income support overpayment help

[Nystagmite]

If her only reason for claiming IS was because at the time, she was a single parent, she wouldn't have been entitled once he moved in.

[flumps1976]

Yes the day that he moved in she should have reported this and her claim would have stopped. He would then have needed to claim eith Incapacity Benefit or ESA depending whenever that was and he would have been able to claim an increase for her, any dependant children would have either covered by tax credits or an increase in Income Support. That is where her overpayment starts as she would not have been entitled from that date as he should have claimed for the family unit and then when he left she would have claimed again in her own right until he moved back in again. Not sure how they will look at that tbh.

[buster1979]

sorry i'm completely lost now..........so there wil be no offset? she is aware that she should have informed them and where the overpayment came from,she was a single parent for 3 years,bf moves in she doesnt tell them (reasons as on other page)if she claimed when he left and not when he was there she would have been ringing back and forth weekly,he has mental health issues and does not leave because he moves out he just has problems takes hiself off,sorts them,returns (sorry i know its not as simple as that,its just i dont fully understand what happens with that bit)and he can not claim benefit as i said earlier,but anyway as mentioned these were her reasons why she never informed them,it was never simple case of them getting together,falling in love,him moving in,living togeter happily etc.Does that mean there is no point her continuing with the appeal?she knows it was wrong,they know what they should have done/claimed etc but its not a s simple as that,she admitted it in interview but i was under the impression she should go ahead with the appeal because they would have been entitled to something and they would deduct this from the overpayment?is this not the case?thankyou for your help x

[jadeybags]

sorry i'm completely lost now..........so there wil be no offset? she is aware that she should have informed them and where the overpayment came from,she was a single parent for 3 years,bf moves in she doesnt tell them (reasons as on other page)if she claimed when he left and not when he was there she would have been ringing back and forth weekly,he has mental health issues and does not leave because he moves out he just has problems takes hiself off,sorts them,returns (sorry i know its not as simple as that,its just i dont fully understand what happens with that bit)and he can not claim benefit as i said earlier,but anyway as mentioned these were her reasons why she never informed them,it was never simple case of them getting together,falling in love,him moving in,living togeter happily etc.Does that mean there is no point her continuing with the appeal?she knows it was wrong,they know what they should have done/claimed etc but its not a s simple as that,she admitted it in interview but i was under the impression she should go ahead with the appeal because they would have been entitled to something and they would deduct this from the overpayment?is this not the case?thankyou for your help x

 

It SHOULD be the case, but I know of atleast one person at the moment that is going through court, pleading not guilty to 10k overpayment. The council have taken no notice whatsoever from all his letters saying he could have claimed IS for him & his son, but didn't during that time, & would have been entitled to 25 pounds a week which would have passported him to full housing benefit anyway, the fact that if he were paying his own rent at the time, the capital he had would have been reduced very quickly, his rent was 600 a month at the time. I have seen his letters to them. The council have only responded to his letters by saying explain that to the court.

I think they are getting over tough now unfortunately.

Best not tell your friend about my post, as it possibly just depends on the council/DWP office that's used.

[flumps1976]

Unfortunately she should have reported the change in circumstance at the time and then reclaimed when he left and ended the claim when he left etc.

I'm not sure if there will be an offset sorry.

I understand her reasons but she was still claiming on the grounds of being a single parent when at times she wasn't.

Edited March 6, 2011 by flumps1976
spelling

[buster1979]

sorry just to clarify as i am gettng confused myself now lol,she was a single parent for 3 maybe 4 years before he moved in,he never moved in permanently at first,just the odd night every couple of weeks,they wernt in a relationship at the time,then he stayed longer etc,there relationship developed over time,though not ur usual from what i see,they dont go out together (as he rarely goes out socially only to his family,he doesnt really socialise with her that much lol)he didnt and still doesnt as far as im aware contribute financialy to anything,(jadeybags i see where ur coming from with the liability bit)there not really like a boyfriend and girlfriend to me they just seem more to emotionally support eachother,but thats my opinion,so i can see her reasons as to why she never reported a change,because she was still a single parent in her eyes,(her son is from prev relationship,)

so is there any point in continuing with the appeal? her solicitor has said that she can not attend with her anyway as legal aid does not cover this and has suggested they send there evidence via paper, i got told it is best to appeal in person but without the solicitor she has no one to go with her,and if what everyone is now saying im worried she may be wasting her time or getting her hopes up for nothing as there will be no offset,she was appealing on the grounds that she would have been entitled to i/s anyway as he provided no financial support??will they not take this into consideration?

[Nystagmite]

An oral appeal is better than a paper one. Him not providing financial support is irrelevant - the benefits system doesn't work like that. He's expected to support her.

[leemack]

It SHOULD be the case, but I know of atleast one person at the moment that is going through court, pleading not guilty to 10k overpayment. The council have taken no notice whatsoever from all his letters saying he could have claimed IS for him & his son, but didn't during that time, & would have been entitled to 25 pounds a week which would have passported him to full housing benefit anyway, the fact that if he were paying his own rent at the time, the capital he had would have been reduced very quickly, his rent was 600 a month at the time. I have seen his letters to them. The council have only responded to his letters by saying explain that to the court.

I think they are getting over tough now unfortunately.

Best not tell your friend about my post, as it possibly just depends on the council/DWP office that's used.

 

If the overpayment of your friend is due to excess capital, there is something called the 'diminishing capital rule'. The last time I used this the appeals officer had to look it up - its not widely known. If its within 13 months of the initial decision he should write back to the council appealing (late appeal) the overpayment on the grounds that the diminishing capital rule hasn't been applied to the overpayment. If its not due to capital ignore what I said. If he does appeal he needs to request an expedited appeal from the tribunals service.

[jadeybags]

If the overpayment of your friend is due to excess capital, there is something called the 'diminishing capital rule'. The last time I used this the appeals officer had to look it up - its not widely known. If its within 13 months of the initial decision he should write back to the council appealing (late appeal) the overpayment on the grounds that the diminishing capital rule hasn't been applied to the overpayment. If its not due to capital ignore what I said. If he does appeal he needs to request an expedited appeal from the tribunals service.

 

You're spot on. After numerous letters back n forth about the diminishing capital, & initially a failed appeal, he did go through the tribunal thing, he has just today been told by the LA that it's not 10k overpayment now, it's only 1k He is slightly pleased to say the least! This has taken since 2009 & is already going through court, so he will still have to go to court, but his solicitor will say er, here we go, new overpayment figure Although he has DWP to tackle for another 11k! His was due to being misadvised in regards to capital from the sale of a house that can be kept for 6 months if it's going to be used for another house. He wasn't informed of the 6 month rule, thought it was indefinate as long as it wasn't spent & wasn't even advised the 6 month rule can be extended!

But it looks like he is half way there now. It actually turned out today that he is in credit with council tax too! lol

[leemack]

That's good news Jadeybags, its a travesty that the councils are so unaware of the rules governing the benefits they administer. Personally I'd put in a complaint - their error has meant a prosecution, where a 1k overpayment would not have been prosecuted.

[jadeybags]

I really dont think that this is as easy as just appealing the decision without knowing what grounds to make the appeal.

 

You say that part of the overpayment is due to her working (but that she can prove that she didn't). For an overpayment to be raised due to her work the decision maker must have had proof of earnings which would have been shown to her during the IUC and discussed with her. She would have been given the chance then to say if they were wrong and further checks would have to have been made with the employer. If she is saying that they are still wrong, what proof is she going to provide to support an appeal ?

 

For the part of the overpayment that relates to living with her partner, they must have had sufficient evidence to say that his main residence was with her. You say that he has mental health issues and that he has never worked. Are you sure that he doesn't get any benefit in his own right, or that he doesn't work? If he wasn't doing either its very unlikely that they will be able to make a claim for him for the period of the overpayment. No claim can be backdated for more than 3 months.

 

 

Her solicitor is either not experienced in benefit fraud or there is something here that you dont know about. A £20,000 overpayment does not mean that she will go to prison although if there are contributory factors, ie - working in a false name, making a deliberately false claim (as opposed to a change of circumstances following a claim) or it not being a first offence then the courts will look at this more harshly.

 

A reduction in the overpayment can be taken in by the courts for sentencing purposes, for example - they can look at the overall loss to public funds if say the correct circumstances had been declared whether tax credits should have been awarded. It is important to know that this does not reduce the amount of benefit that needs to be repaid but it means that any sentence that the court passes would be decided on the reduced figure.

 

I'm not sure this bit is quite true, getting the overpayment down because of what could have been claimed instead should be done before court & SHOULD be adjusted by the LA or DWP. DWP are a bit more tricky from what I gather, but LA's definitely do take those things into account. And it can make a lot of difference to the final over payment & will make a difference to what is to be paid back.

A lot of letter writing & a benefits solicitor should be involved.

[jadeybags]

That's good news Jadeybags, its a travesty that the councils are so unaware of the rules governing the benefits they administer. Personally I'd put in a complaint - their error has meant a prosecution, where a 1k overpayment would not have been prosecuted.

 

Thanks, I'll mention that to him. x

[leemack]

It sounds like what 's being described is the 'partner' being 'of no fixed abode for a large majority if not all of the time. They will need to show this on a balance of probability at the tribunal. So the best thing would be to gather evidence of the other places he stayed at during this time and that he flitted about here and there. Letters from people he stayed with, giving approximate dates, or times between which he came and went - for example was staying at several different addresses between 2006-2008 (whatever the dates are), used to come and stayed for a few days at a time, would be gone for weeks or months etc etc. A letter from a doctor or mental health professional explaining his mental health problems. And a letter from the appellant to explain the reasons why this was not a husband and wife relationship. It is worth trying as for at least some of the time he wasn't living there - so the overpayment should be reduced.

 

A good solicitor would also be putting all of these points forward for the criminal case, as the intention was not to defraud but simply to feed her family and pay the bills. Making the point that as the chap in question was not earning, there would have been an increased entitlement to benefit, not a decreased entitlement. Though this argument doesn't hold sway with an income support tribunal, as the entitlement would be to a different benefit, the argument should be made at the criminal case - as a couple their benefit income would have been higher.

 

If any part of the overpayment is HB/CTB that should be based on what money was actually coming into the house, so if not entitled to IS should be based on child benefit and tax credits.

Edited March 11, 2011 by leemack

[my2beautys]

What happened inthe end?