Any Case Law about DWP's Entitlement Decision and/or Overpayment Decision?

[Vek]

X has a medical condition. She was assisted to apply for JSA and got awarded JSA. She signed on every week to receive JSA payment. After a few months of her being awarded JSA she was assisted again to apply for DLA and no decision appeared made at the time.

After about 16 months on receipt of JSA she started college and she stopped to sign on for JSA. After a week of starting college her JSA payment was suspended. JSA was then terminated after five weeks.

After over two months a payment was made to her that was huge, yet it was described as JSA payment. After three years she was interviewed by the DWP that she failed to disclose that she started college so an entitlement decision and Overpayment Decision was issued. The entitlement decision only covered the last few months before it was terminated and did not go back enough to cover when the JSA was actually awarded.

Question 1
Is there any case law to point me to about JSA in relation to the fact that without the sign on that any payment purportedly made is unrecoverable? This question is asked as she cannot really explain anything because of her medical condition and what I could pieced together (not 100 percent certain about whether I am correct) was that she was assisted to apply for benefits by the Council Welfare Officer and that she told the Council Welfare officer when she started college. The Tribunal decided that since she was a student that was conclusive of the matter there was nothing about whether she signed the JSA Agreement or not as a student was not entitled to receive JSA and as such recoverable.

Question 2
Is there any case law to point me to that before an Overpayment decision is issued that the Entitlement decision must first be revised to cover the whole period of JSA, otherwise the Overpayment is unrecoverable? This question is asked because the huge amount received could mean that there was increment of the JSA backdated to when she was actually awarded and yet the Entitlement revision did not cover the full period of the JSA. Another possibility could be that the huge amount was amount backdated pay of the DLA which was erroneously described by the DWP as JSA. What the DWP requested was overpayment from when the JSA was suspended and the further five when it was terminated. In all these period she never signed on and no payment received. The DWP stated that the huge money paid stated JSA so covered those period that the JSA was suspended and terminated which the Tribunals agreed.

If I understand correctly, she claimed JSA and received it while she was signing on every week. She then stopped signing on and stopped receiving JSA. However, she failed to tell the DWP that she was starting a college course. She also received an unexplained lump sum after she started college.

You won't find any case law to say that JSA received after she stopped signing on is unrecoverable. Stopping attending the weekly meetings does not automatically stop your claim. It may result in you being sanctioned, which means payments will stop for a while, but the claim generally still exists. Your friend was required to inform DWP within 1 month of starting at college. That would have terminated her claim. She did not do so.

Regarding your second question, you need to ask DWP what the lump sum relates to and how it was calculated. It is highly unlikely to be due to a change in JSA rates. Any change in entitlement should result in an immediate change in payments.

Any overpayment that was due to your friend failing to inform DWP that she had started at college is recoverable.

If any of the overpayment was due to her being entitled to both JSA and DLA, it is recoverable.

For new style JSA, any payment made in excess of entitlement is recoverable.

I suspect you won't get anywhere with this, but I would strongly recommend seeing someone at your local Citizen's Advice. I have been to some extent guessing as I'm not entirely clear what has happened. If you can give them all the details, Citizen's Advice will be better placed to help.

You got the gist of the matter. I noted your opinion that JSA is unrecoverable. Her JSA took place many many years ago before the new style JSA came into being.

Have you given consideration to the Decision Makers Guide 9042 which relevantly provided an instance upon which JSA can be unrecoverable as shown below:

"3. where payment of benefit is affected for a period before the date of receipt, for example where a retrospective pay award is made, any overpayment before that date is not recoverable"

...

"Example
A claimant receiving JSA(IB) starts P/T work on 4 August and is first paid on 15 August. The claimant signs at the Jobcentre on 12 August and on 14 August receives a payment of JSA(IB) only for the fortnight ending 12 August. The claimant discloses working on 27 October. The period of the recoverable
overpayment starts on 13 August.

The material fact is the receipt of wages and not the P/T work. Had the 1st wage been disclosed on 15 August it would have affected the amount payable on 26 August."

I don't think that means what you think it means. The example relates to point 1. Point 3 is about a situation where something happens to the claimant that could have affected benefits paid before that date. The example given is a backdated pay award. So, for example, the claimant receives benefits starting in March. On 1st September they receive a pay rise backdated to 1st July. In theory, that means they have been overpaid benefits from 1st July to 1st September. However, under this guide, the overpaid benefits for that period will not be reclaimed but any overpayments made after 1st September will be reclaimed, even if DWP doesn't find out about the pay rise until the following year. Nothing like that has happened in your friend's case.

I remain of the view that you need to find out why the large lump sum was paid and talk to Citizen's Advice.

Before I brought the matter here the Citizen Advice was approached and they were unable to assist on this particular case besides the fact that they signposted her to consider to make application to weareadvocate legal charity. If you can suggest a specific Citizen Advice Bureau known to you (and probably name of adviser) that would be able to assist in the event she was not in their catchment region then that would be helpful.

I do not know whether you gave consideration to the worked Example I provided above from the DMG09042. That example showed that JSA was not recovered for the period of 4 August and 12 August. I simply interpreted it as no payment from the Part Time work to disclose. The first payment was received on 13 August so the JSA was recoverable from that date. Whereas in this case I brought here she never received any payment whatsoever from JSA after she started college and never received any payment whatsoever from any other source when the JSA was closed.

The evidence I have seen (computer screen print from DWP) showed that JSA payment was stopped a week after she started college (this supported the fact that she did not sign on hence payment suspended). Then no JSA payment for the further five weeks period before the DWP system registered "Claim End reason: Failed to Attend".

So after two months DWP showed payment evidence of a huge payment to her that stated Benefit - Jobseekers Allowance IB. DWP written evidence was that that money was inclusive of the period she started college and when the DWP system closed the JSA Award. They suggested they don't have the detailed records of payment made but in their opinion it was inclusive of arrears.

I can't recommend a specific CAB.

I gave consideration to the worked example. I don't see that it has any relevance to your friend's case.

If DWP don't have detailed records of the payment made, I would challenge them as they should be able to show exactly how the overpayment has been calculated. They cannot just pluck a random figure out of the air and demand payment.

How much was the huge overpayment?

Why didn't someone phone and question it at the time?

@prh47bridge That was why I have been checking out for any case law to see how situation like that was judicially determined.

@Gingerkittykat I had stated in my initial post that they were only asking for a fraction of the huge payment made which they cannot accurately explain. They requested payment for the period she was never paid JSA when she started college until the day the DWP's system closed the JSA record. DWP felt that the payment she received two months after the JSA had been closed should include that period she started college when no payment was made plus benefit arrears. The tribunal accepted DWP's submission.

I don't think you will find any case law on the two original questions. However, you don't need case law to say that they need to be able to show exactly how the overpayment was calculated. If this went to court, they would be required to show how the figure was calculated.

In England, the Tribunal that accepted the awful decision of the DWP and dismissed her appeal, is regarded as a form of Court.

They accepted it with just a random figure plucked out of the air and no justification? That really surprises me.

The Judiciary is independent as you rightly know so a judge knows that and given liberty to accept anything.

No, judicial independence does not mean they can accept anything. You need to see a lawyer.

Benefit - Jobseekers Allowance IB

How long ago was this claim? The IB at the end suggests it might have been Incapacity Benefit which pre-dated ESA. I don't know what the rules were for claiming IB while studying.

Before I brought the matter here the Citizen Advice was approached and they were unable to assist on this particular case besides the fact that they signposted her to consider to make application to weareadvocate legal charity

Did you contact the legal charity?

@prh47bridge I agree with you but in the UK nothing can be done against an incompetent judge or a judge who deliberately inflicts injustice on a party in the course of the judge's case management powers.

@LangClegsInSpace Incapacity Benefit does not have Jobseeker Allowance in from of it. So the IB appeared to me as "Income Based".

From what I could pieced together, she appeared to have contacted the legal charity but was administratively rejected on grounds that she needed clear 21 days before the expiration of the within one month for her to seek the decision of the tribunal be set aside.

If the judge makes a decision which is contrary to the law or which is not supported by the evidence, an appeal will overrule them. To say again, you need to see a lawyer.

There is no appeal against refusal of permission to appeal.

If the judge refuses permission to appeal, you go to the higher court and apply for permission to appeal. However, if the higher court has refused permission to appeal you are out of options.

@prh47bridge No, there is still the right to set aside hence I came here probably someone may know of case law to point me to or ask the question in the rightsnet forum probably some experts in welfare benefits law could provide free advice.