Advice needed please Re Incapacity Benefit

pmlindyloo

Have they said how much the overpayment is?

Is he on contribution based ESA or income based ESA.

robotrobo

mellymoo3080 wrote: »

Hi all, thank you for the replies. My father had his meeting yesterday with the DSS so we are a little more aware of what has happened. My father was medically retired from the prison service in 1996 so received his pension from them. He had a few part time jobs after this, the last one being in 2002 for the NHS. When he was diagnosed with a further medical condition he could no longer work. He then filled out the incapacity benefit claim form. The form was asking all about his health conditions and his previous job. He filled the form out and there was a tick box on it that asked if he would receive a work pension. As the form has asked all about the job he had just left he ticked no as he thought that the form was talking about that job role and not in general. That never crossed his mind until they explained the form yesterday! So he has in fact claimed benefit he shouldn't have unknowingly. The person he spoke to said he has grounds to appeal being asked to pay it back as it seems an easy mistake to have made and since then no one has ever asked anything about it. We are still very stressed about it all. Within my career checking documents is one of the main things I do. I would have checked the form before it was sent at the time so I must have misunderstood this question as well!!

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something similar happened to me around the year 2000, i also was on a company pension as well as incapacity!, it was me that noticed it & i went to citizens advice, as i thought i was cheating the system !.
And what it was that the government changed the rules & the existing claimants was unaffected so i had nothing to worry about, so maybe your dad was or is in this boat.
i still have the paper work in the loft , if you need to know the exact year that things changed ?. i think if the worse is to happen he may have to pay back the overpayment only , without any further action to him.

mellymoo3080

I am pretty sure it is contribution based ESA. The existing claimants being exempt ruling came in 2001 so sadly Dad does not fall in to the unaffected category and owes in the region of 50K.

pmlindyloo

mellymoo3080 wrote: »

I am pretty sure it is contribution based ESA. The existing claimants being exempt ruling came in 2001 so sadly Dad does not fall in to the unaffected category and owes in the region of 50K.

You are going to need professional help with this one to appeal. Were you given any help as to what the appeal would be based on? This is where you need professional help. If you have CAB near you they will be able to help or sign post you to someone who can. I believe you only have a month to appeal so don't delay, but this is, I think, from the date your dad receives a decision letter. Were you given any information about how to appeal?

Have they given you a breakdown of how the 50K has arisen? You need to ask for this.

I don't know how much your dad's pension is but for contribution based ESA half of any amount over £85 per week is treated a income.

Not sure how pensions affected Incapacity Benefit.

What is your dad's personal financial situation? Does he own his own house for example? Does he have any way of paying this back if worse comes to worse?

mellymoo3080

So the man at the DSS said they send the interview off to the DWP who will decide if it is a criminal offence. He said he would be really shocked given the circumstances and the fact that the pension is in fact paid from the government if they were to say it was fraud. He then said they will received a letter more than likely asking for the money back at which time he says they should appeal it and go from there. They have no house or savings so no money to pay it back with other than a tiny amount each week or something I guess. It is really gutting for my father as he has chronic illnesses so life is not pretty. He lost his brother a few weeks ago suddenly and now this. He would love to be able to work and not have to claim anything but that is not the hand he has been dealt. I know most people probably say it but I can only speak for him. He was only 36 when he had his haemorrhage so been a rough couple of decades since. Anyway - depressed rant over.

tomtontom

His memory of the application form is wrong, pension income is in a section by itself. There is also information in the explanatory notes about how it affects entitlement. You can download an archived copy online.

pmlindyloo

tomtontom wrote: »

His memory of the application form is wrong, pension income is in a section by itself. There is also information in the explanatory notes about how it affects entitlement. You can download an archived copy online.

And this is why the OP's dad needs professional advice.

It could be argued that dad was very ill at the time of applying and did not understand the form.

It could be argued that when he was transferred to ESA then checks should have been made to ensure that they had all the up to date information.

I don't know whether your father lives alone or what his circumstances are now or then but were checks done on his transfer to ESA to see if he was eligible for income based ESA?

I am only trying to think of possible reasons for appeal and I may be well off the mark.

Easier said than done but there is no point in worrying until you get the decision letter.

rogerblack

pmlindyloo wrote: »

And this is why the OP's dad needs professional advice.

They have - reportedly - up to now been 'nice' about this, and not implied it is fraud.
As I understand it, they are not usually bound by this.
I would request a copy of the entire IB/ESA file, under the data protection act.
https://www.gov.uk/government/organisations/department-for-work-pensions/about/personal-information-charter

Finding a skilled benefit solicitor would be ideal - even if you have to pay them a couple of K. A general solicitor who doesn't know how the benefit overpayments rules work is basically useless.

The potential for them going ahead with recovery, or subsequent criminal prosecution is too high at 50K.
A criminal prosecution if successful would then allow asset forfeiture - where usually protected assets (only house, car, ...) can be confiscated.

mellymoo3080

tomtontom wrote: »

His memory of the application form is wrong, pension income is in a section by itself. There is also information in the explanatory notes about how it affects entitlement. You can download an archived copy online.

Hi, he saw the form apparently and it is not in a separate section. The man said he could totally see where the confusion happened. The DSS have a copy of it so Dad is requesting to have a copy. I think the forms changed not long after. I have tried to find a blank copy to look at but no luck so far.

mellymoo3080

rogerblack wrote: »

They have - reportedly - up to now been 'nice' about this, and not implied it is fraud.
As I understand it, they are not usually bound by this.
I would request a copy of the entire IB/ESA file, under the data protection act.

Finding a skilled benefit solicitor would be ideal - even if you have to pay them a couple of K. A general solicitor who doesn't know how the benefit overpayments rules work is basically useless.

The potential for them going ahead with recovery, or subsequent criminal prosecution is too high at 50K.
A criminal prosecution if successful would then allow asset forfeiture - where usually protected assets (only house, car, ...) can be confiscated.

Thank you so much for the advice. I have downloaded the forms for dad to request a copy of his files.