Overpayment of ESA (and it's the DWP's fault)

Good evening

I have joined your website this evening and hoping you guys can help. I know you can’t provide specific advice, so am just looking for information based on your clear expertise and experience in this area.

I have given some background information for the case, but really I just need a response to each of the queries given below in bold if you only have time to respond to those.

My father has been in receipt of the contribution-based support-group ESA since 2013 following a serious illness. With the support of my mum and staff at the DWP over the phone, his application forms were completed in full and to the best of my parents’ knowledge. The DWP staff on the phone made it very clear that the contribution-based ESA payment was in no way based on my father’s income.

However, a few months ago my father received a letter accusing him of withholding information about the occupational pensions he has received since 2013. The DWP also asked for copies of payslips from his occupational pensions. These payslips were provided as requested within the DWP’s requested timescale.

With my support, my father also wrote to the DWP at the time in the form of a Mandatory Reconsideration, asking for them to review their evidence and to provide evidence that information had been withheld at the time of his application. My mum is sure that she filled out every box she was supposed to on the form in full given she did so with the help fo the DWP telephone staff, so if they don’t have the pension information then they must not have asked for it (and if that is the case, how is that my parents’ fault?).

Despite my father’s request, the DWP did not provide a response to the request for evidence. However, my father then received correspondence dated 12 August demanding repayment of over £6,000 in overpaid ESA.

We have to get back to the DWP within the next few days to respond to this, and I would therefore be grateful if you guys could respond to the following queries for me:

1) Under what circumstances does an individual have to repay overpaid ESA to the DWP?

2) Is the onus on the DWP to prove that the individual was trying to commit fraud to get the overpayment back? (i.e. the overpayment is my father’s to keep unless they can prove the overpayment is not the result of an error by the DWP)

3) Is it worth asking again for a copy of all evidence the DWP have received regarding my father’s pension income? I want to see proof that information was intentionally withheld before I am prepared to give up on this.

4) Can we ask (and reasonably expect to receive) the recording of the phone call my mum would have had with the DWP on my father’s behalf in 2013? This would be the call where my mum was told that contribution-based ESA was in no way based on my father’s income.

5) Is it legal or moral for the DWP to pass on my father’s contact details to their debt collection agency before he has had an opportunity to respond or appeal their decision?

6) Is there anything else we should do to help our case?

My father struggles to deal with complex situations, which makes him an easy target for bullying and harassment like this, and I am therefore representing and advocating for him on his behalf with the DWP and their Debt Collection Agency.

I would be grateful for any and all information that you guys can provide. Thank you for your time. convenience.

Despite the initial details being taken over the phone, the claimant is then sent the completed form to check, sign and return. So, even if the question was not asked on the phone your parents would have had the opportunity to provide the details when the copy of the form arrived. In order to prove that DWP were to blame, you would need to provide an explanation for this I think.

Hi Gordon

You have my sincere thanks for your response - I have responded to each point in turn below.

"I would strongly recommend that your parents get face to face advice from a trained advisor, do an internet search for "welfare advice" with their postcode, town or county."

My parents visited Citizens Advice when they first got the letter asking for copies of payslips. They asked at the time about what steps they should take to make sure they make their representations in the right way, but the advisor they had was awful. All he would do is take the letter and read it out to them over and over (as though they couldn't read themselves). I relaise how overstretched Citizens Advice are, but this was disgraceful. From doing a Google search it looks like the main source of such support is Citizens Advice, but if there are other organisations that can help my parents' in this situation I would be grateful if you could point me in their direction.

"There is little support that we can provide on the forum as it will likely require access to the documents involved in the original claim, which is not practical on an online forum such as B&W."

I am very happy to just receive generic support on this case that doesn't require knowledge of the pounds and pence, or knowledge of every item written on the application form. I am more interested in what evidence we should seek and what to look for in any relevant documents that you expect to be pertinent to this case.. As mentioned, my parents are sure they filled out every box on the form they were given and were told by the DWP that income was irrelevant for contribution-based ESA, so they had no reason to think that changes in pension income were relevant things to disclose to the DWP. The term "change in circumstances" is overly broad and it is unreasonable to expect an individual to report something they have been told is irrelevant to their ESA calculation.

"If this is the only reason that you have joined B&W then I would recommend you contact the site owner and request a refund.

This email address is being protected from spambots. You need JavaScript enabled to view it."

I will consider this, thank you for your honesty.

"To try and answer your questions.

1. Overpayments are recoverable unless the claimant can show that the DWP was at fault."

The DWP are making a claim for the money they paid, so I don't understand why they don't need to submit evidence? In a court situation, the prosecution (the DWP) would need to prove beyond reasonable doubt that my father deliberately withheld this information, is that not correct?

"2. The onus is on the claimant to show that they provided the relevant information within a reasonable time, normally 30 days, or in this case at the start of the claim."

I think this misses the point slightly. My father was told that income was irrelevant for his claim, so my parents saw no need to tell the DWP about my father's pension income.

"3. Yes, you should request a copy of the completed ESA1 form, they may be able to make over the phone (you will not be able to do this without your father being present to answer the security questions, failing this you can raise a Subject Access Request.

SAR :

www.dwp.gov.uk/docs/request-for-personal-information.rtf

From this page :

www.dwp.gov.uk/privacy-policy/data-protection/"

I intend to do this in our response to the DWP's last correspondence. Given they ignored this request last time I can only keep asking and as long as we keep copies of all letters sent it can only help our case if we can demonstrate that the DWP have been obstructing the process.

"4. You will need to raise a SAR, I don't know whether a recording would still be available from 2013."

I'm sure if it helped their case they would find it! I will ask in the letter and perhaps try to avoid explaining why I want a copy to avoid it being "accidentally deleted".

"5. I'm sorry but morality is not relevant to their situation. Having made a request to the claimant for the monies the DWP are entitled to recover it using other means."

Again I think this misunderstands the situation slightly. The DWP first asked for repayment in their 12 August letter. In that same letter, they said they had immediately provided by father's contact details to their debt collection agency. My father was not given an opportunity to appeal their decision to repay the money before his details were passed to a debt collection agency, and that seems wrong, immoral and in breach of the principles of the data protection act.

"6. See my original comment."

Thank you.

"The requirement for pension information in regard to ESA(CB) is detailed on page 1 of the ESA1 claim form and Part 9 on page 19-21 of the current ESA1, I don't believe there have been significant changes to this form since 2013.

www.gov.uk/government/uploads/system/upl...19631/esa1-print.pdf"

After their initial call with the DWP when making the application, my parents had a few more calls with DWP staff to get help in reviewing the paper form they had received. If there were boxes that asked for pension information then I am sure my parents would have provided the requested information.

Hi Mrs Hurtyback

Thank you sincerely for your response and support.

My parents are sure they filled out everything on the form they received from the DWP. It may be that the DWP didn't load the data onto their system correctly.