Overpayment of ESA

[Maggie]

Hello Everyone.

I need help and advice with regards an overpayment of ESA. I will endeavour to explain the circumstances we find ourselves in.
my husband began claiming ESA as advised by his then employer when he became too ill to work and his salary was reduced by half after six months. (Sept 09) At the time of this application he was still employed. He submitted his ESA50 and added that he was being referred for consideration of medical retirement.
Following a medical and an initial reconsideration, he was placed in the support group where he remains to date. He was medically retired on 31 Jan 2010 and began receiving his occupational pension.
At this time he notified the DWP of his retirement via phone and also the tax office. HMRC could not get his tax code right and he actually received notification of 11 different tax codes in the same month! Whilst recovering from complicated surgery he was desperately trying to sort out his tax affairs and had three way conversations with HMRC and DWP. He has a letter from HRMC confirming that they would be writing to DWP to inform them of the correct tax code to use as his ESA would be taxable at basic rate. However this letter does not actually mention occupational pension, but by telling DWP to tax his ESA would indicate he was in receipt of income I believe.
in all correspondence regarding ESA since this time my husband has always stated that he was now medically retired. He has completed two further ESA 50 forms since where he states he is now medically retired.
July 2013 he received a letter from the DWP saying a Compliance Officer would be visiting. We had no idea what a compliance officer was so rang DWP to make enquiries to be told it was merely to make sure records were up to date. Not unduly worried we waited for the visit.

It turns out whilst he is entitled to the benefit he is not entitled to any money as his pension is taken into consideration. Shocked and panic stricken would be too simplistic a description of our reaction. Apart from believing Contribution based ESA support group was non means tested as many web sites tell you this is in fact not the case. I understand that ignorance is no defence and the officers were not in anyway suggesting that we had deliberately mislead them. We showed them our paperwork and even a letter from my husbands pension administrator who low and behold is the DWP! But of course they are different depts. I guess it comes down to the fact that we don't actually have physical proof /hard copy of our notification to them as it was via telephone.

What advice am I looking for? I don't really know. I guess firstly in your opinion do we have to repay this money which will be approx £18000!! Secondly, if we do have to repay, can we negotiate a repayment plan? We of course don't have £18000 laying around sadly.
I hope I haven't rambled too much, it's difficult to explain and of course I'm emotionally knackered with all of the stress. My husband has struggled with disability since aged 26 to be told he would never walk again and it was suggested he should give up work then. He refused and has pushed himself to his detriment until now aged 53. The only benefit he has ever claimed is DLA, all adaptions to the home etc we have paid for ourselves. I know this is not relevant but I just feel so angry right now and it's good to get it off my chest.
Thanks peeps.

[pompeyfaith]

Re: Overpayment of ESA

Was all of the ESA payments made to your husband contribution ESA? From 29 April 2013, overpayments of UC, contribution-based JSA and contributory ESA will always be recoverable – ie, even where not caused by failure to disclose or misrepresentation. (At time of writing, this would appear also to apply to overpayments of income-based JSA and income-related ESA, although it was understood it was not the official intention to apply this rule to them.)

Now you have two options open to you and one follows the other so first you need to make you case out on paper as to why you do not believe it is owed this is called a reconsideration. If that does not go your way you can request an appeal details of how to do this will be explained in there reconsideration letter.

I must stress that appeals are getting harder to get as the welfare reform act 2013 has changed legislation considerably and thus shortly an appeal will only be granted to the second tier tribunal on a point of law added to this is of course the cut to legal aid on benefit appeals.

So really you need to make the reconsideration work for you, so do not rush the letter take you time and get the facts correct and remember there is a time limit in which to get your reconsideration in which is 30 days from the date of the overpayment letter.

Given the amount they say you owe and the seriousness of this I think you need the help of someone with legal training and know just the person so give me a shout if you get stuck

[Maggie]

Re: Overpayment of ESA

Was all of the ESA payments made to your husband contribution ESA? From 29 April 2013, overpayments of UC, contribution-based JSA and contributory ESA will always be recoverable – ie, even where not caused by failure to disclose or misrepresentation. (At time of writing, this would appear also to apply to overpayments of income-based JSA and income-related ESA, although it was understood it was not the official intention to apply this rule to them.)


Now you have two options open to you and one follows the other so first you need to make you case out on paper as to why you do not believe it is owed this is called a reconsideration. If that does not go your way you can request an appeal details of how to do this will be explained in there reconsideration letter.

I must stress that appeals are getting harder to get as the welfare reform act 2013 has changed legislation considerably and thus shortly an appeal will only be granted to the second tier tribunal on a point of law added to this is of course the cut to legal aid on benefit appeals.

So really you need to make the reconsideration work for you, so do not rush the letter take you time and get the facts correct and remember there is a time limit in which to get your reconsideration in which is 30 days from the date of the overpayment letter.

Given the amount they say you owe and the seriousness of this I think you need the help of someone with legal training and know just the person so give me a shout if you get stuck

Thanks for your reply

i need to clarify a couple of things.

1. He has so far only received a letter from DWP advising him that he is not entitled to any payments of ESA because of his occupational pension.

2. As yet has had no contact from the overpayment dept. so doesn't know the exact amount of the overpayment or whether they are going to recover it in part or in full.

3. When you suggest making a case on paper, at what point do I ask them to reconsider or appeal the decision, now or when the overpayment dept. contact me?

You mention in your post that you may know someone who could help who has legal training, is it possible you could give me this info? You can pm me if you would rather.
Thanks again for your advice/support it helps to know you're not on your own.

[pompeyfaith]

Re: Overpayment of ESA

When and if overpayments contact you and you get a letter stating the overpayment amount, we do not want to make the horse bolt before it has jumped

Soon as and if you get that letter get straight back on here because due to time limits time is of the essence with the DWP.

[Maggie]

Re: Overpayment of ESA

When and if overpayments contact you and you get a letter stating the overpayment amount, we do not want to make the horse bolt before it has jumped

Soon as and if you get that letter get straight back on here because due to time limits time is of the essence with the DWP.

No! We don't want to make the horse bolt before it has jumped

Thank you so much for your help, you have no idea, or perhaps you have, of the stress, confusion, panic that has been in our lives since this first letter regarding a visit from the compliance officers.
we really had no idea about the occupational pension being relevant. Even CAB who we contacted said we had it wrong and that CB ESA support group was non means tested as did Turn To Us another welfare rights charity and Fightback. Trying to get help and advice has been a nightmare, we really felt on our own with this.
You know there is no logic behind the whole scenario. We were told by the DWP that 1. He could win £1000000 on the lottery or be left a large inheritance and this would not affect his right to payment, but because he has paid into an occupational pension then he is not entitled to the money. How bloody stupid is that?

I will wait for the dreaded brown envelope and contact you again then.

Many Thanks

[garlok]

Re: Overpayment of ESA

Hi Pompey,

A quick check, is this the correct terminology please? Should the benefits going back to 2009 be a raft of other measures not purely ESA?

regards
G

[Maggie]

Re: Overpayment of ESA

Hi Pompey,

A quick check, is this the correct terminology please? Should the benefits going back to 2009 be a raft of other measures not purely ESA?

regards
G

Not sure if I quite understand your post garlok, maybe I'm not meant to as it is for pompeyfaiths attention��
just to confirm, my husband is in receipt of ESA only, we are not on any other benefits.

[garlok]

Re: Overpayment of ESA

What I was really asking Maggie is the ESA elements. with the current rates of ESA and from the time it was formally rolled out its a problem to get to the £18,000 overpayment if you see what I mean. If this includes penalties then usually a reconsideration will go a long way to reducing these. However my question was targeted by the fact that by calculation of current rates it would not be possible to get to the figure quoted which would suggest that they have taken into account other benefits. If that were the case then there is/was an improved possibility of reducing the figure. All to work in your favour and most definitely not meant to be insulting or offensive.

You see you state September 2009 as being the time he started on his six months half pay which then brings us to March 2010. With the average ESA payment being £5000 per annum --- ish. As you have a notice in your hand that would only bring us to April 1st--- ish this year and would only at absolute maximum constitute £15000 over payment.

It is this sort of detail that pompey will need to get it right for you

regards
G

[Maggie]

Re: Overpayment of ESA

Hi Garlok

Firstly, I said he was not in receipt of any other benefit but I forgot about his DLA HRM & HRC I am his full time carer though do not claim carers allowance, I never have, proudly/foolishly believing that as his wife I would expect to do this.

i think I do understand what you are saying, within the time frame of his claim, he could not have reached £18000 Is this what you meant! This figure of £18000 is a rough calculation that we arrived at when we tried to work out how much he had received since first claiming. DWP have not given us any figure as yet. I guess we are just trying to get our heads around it all so we can at least be prepared.

Part of me is hoping that perhaps they will realise that we did inform them and not seek the full amount, suppose there's more chance of me winning the lottery!


He has been paying tax on this amount also so I guess he would be entitled to a tax rebate though I suppose not until he had paid the money back We are so confused and stressed out over it to be honest. It didn't help that the compliance officer who visited us said "We were alerted to a problem in April but have just got round to dealing with it" What!!! they knew then that he was getting a pension so why didn't they just call us and ask? Especially as it is the DWP who administer his bloody pension! He was a civil servant.

This mess is really taking its toll on my husbands health, he is not sleeping, his pain is increased ( he is on morphine patches) now having to take extra. All through no fault of our own.

Sorry for rambling yet again, I can't talk it over with him as it causes more stress

PS I never for a moment considered your post offensive or insulting ��

[garlok]

Re: Overpayment of ESA

First of all Maggie. Don't panic. Pompey is an expert in this sort of stuff, I can only relate our experiences. I think his advice is the best just wait and see what they come up with. You don't know at the moment. But I am surprised at this being an opening gesture. Usually there is a compliance investigation of some sort first in which yo are asked to provide a raft of information first and you have an allocated officer with whom you liase. Much like the tax credits system. We had a huge panic earlier in the year over a TC investigation because our first letter had gone missing in the post literally. I found out when I phoned in to disclose a change of circumstance. At that point I was told we were under investigation for no compliance. However they put me through to the compliance officer, spoke honestly and openly with her, she agreed there had been a problem, re sent the original letter with an adjusted time frame and all went through clear and clean. Of course their computer generated letters were already on the way and we had four threatening letters each of which had to be put on hold by compliance until they had completed. Then all was sorted and a new award calculated with all penalties removed and no overpayments. I am not saying that is what has happened here merely our experience of the system.

As we found out whilst working with compliance, the various departments like HMRC and DWP do not talk to each other and it was us that provided all the booklets and certificates from DWP to the tax credits compliance officers. Once in the picture over my permitted work as I am disabled, they were fine and could not have been more helpful. Not easy I know but both of you chill out a bit and wait to see what they actually want.

regards
G

[Maggie]

Re: Overpayment of ESA

Thanks G you are right of course, we just need to wait and see. The compliance officers who visited us were very helpful and kind, they didn't make us feel threatened and reassured us we were not under investigation...a big relief. They took copies of our paperwork relating to his pension amount and a copy of the letter from the tax office where they are saying they will be contacting DWP regarding his tax and ESA. They seemed rather surprised at this letter. They could clearly see there was no intention on our part to mislead.

We just need to be patient and see what transpires.

Many thanks to you both for your helpful posts and understanding. I will keep you updated. x

[garlok]

Re: Overpayment of ESA

Thanks Maggie. These matters are very troubling and the letters you get could be worded a little better to say the least. Our compliance officer told us that this is one the biggest most regularly made complaint, the way letters "speak" to people.

Chill out a bit as there is actually nothing you can do until such times as you hear from them again.

regards
G

[pompeyfaith]

Re: Overpayment of ESA

Eventually we are going to have to Subject Access Request (SAR) the DWP to get hold of every piece of info they have on you including copies of telephone recordings and see if any mistakes have taken part there end, but we will hit that should the need arise.

So for now relax and take care of your husband because until you get an overpayment letter there is no more we can do.

BTW why are you not claiming carers allowance? you really should do because if you do have to pay it back under a payment arrangement this money of over £200 a month will come in very handy indeed, furthermore it is not just the allowance as you also get NI credits being a carer which of course tops up your pension.

Even if you are not entitled to a carers allowance payment you still get the NI Credits so claim it.

[Maggie]

Re: Overpayment of ESA

Hi Pompeyfaith

The only reason I have not commenced my claim for carers allowance now is : My husband at the moment is on HRM & HRC this is an indefinite award. I'm sure you are aware the with the transfer to PIP, indefinite awards of DLA will not be looked at until Oct 15 at the earliest. By claiming carers allowance, would this instigate a review of his DLA now? I really don't want him to have to go through all of that right now as I think that would be the straw that breaks the camels back.

I would like to think that even if he was reassessed, he would continue to receive this award as he really is disabled and meets the criteria for the support group. Sadly, knowing what I know about these not fit for purpose tests I am far from convinced.

Maggie

[pompeyfaith]

Re: Overpayment of ESA

Yes I am aware of all the impending changes and yes you are right in that his DLA awards will not be looked at until 2015 at the earliest as that is the same for me regarding DLA.

I do not think it will affect his DLA claim as it is you claiming carers allowance and not him, however I understand and appreciate your concern as PIP by all accounts will be harder to claim as they have tightened the criteria so hold fire until I can confirm that as gospel.