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ESA overpayment - help please

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tippi
tippi Community member Posts: 22 Listener
Hi there! DWP are saying that they have overpaid income-related ESA to my son. We have to submit a  Mandatory Reconsideration form to challenge their decision. Before we do this we need to understand how ESA works. Put simply Guy got his ESA monthly and after his partner moved in with us, his parents, and Guy (prior to the birth of their baby) she got SMP for a year. Surely getting only SMP is not enough income to affect Guy's ESA payt? Or am I reading this wrong? Any help explaining this will be gratefully appreciated.

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  • poppy123456
    poppy123456 Community member Posts: 57,289 Championing
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    It will depend on how much her SMP is/was. SMP will be treated as earnings for Income Related ESA because it's a means tested benefit. 

    You say he was paid his ESA monthly but that's not correct. It's a weekly benefit, paid fortnightly. 

    I remember advising you with this last year, you can see the thread here. https://forum.scope.org.uk/discussion/108780/contribution-based-cb-and-income-related-ir-esa#latest

    In that thread you said his partner was working full time, for Income Related ESA if a partner is working more than 24 hours/week then there will be no entitlement to ESA for your son. 

    I also see in that thread that you said they made a claim for Universal Credit because there was no entitlement to his ESA. Are you asking about their UC claim? You do mention that he receives it monthly and that coincides with UC because this is paid monthly. 

    Sorry for all the questions but I can't advise further without answers to those questions. 
    I would appreciate it if members wouldn't tag me please. I have all notifcations turned off and wouldn't want a member thinking i'm being rude by not replying.
    If i see a question that i know the answer to i will try my best to help.
  • tippi
    tippi Community member Posts: 22 Listener
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    Hi Poppy, thanks for getting back and remembering us! This whole thing is turning into a nightmare and is extremely worrying for us all. As if disabled people did not have enough on their plates. Tbh it's all far too complicated now to go into all the detail on here  but any advice you can give is really appreciated. Guy's partner moved into our family home to be with Guy immediately prior to the birth of their baby. We did not realise we needed to tell DWP about this (our BIG BIG mistake we realise now). Guy continued to get his IR ESA. His partner got SMP for 12 months and then went back to work. DWP say she was working for that year but she wasn't, she was on maternity leave and getting only SMP. I assume from what you said before SMP is regarded as earnings and bar the £20 this amount comes off Guy's ESA? Is that correct? Poppy, I think if we could leave it there for now that's fine.
  • poppy123456
    poppy123456 Community member Posts: 57,289 Championing
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    Yes SMP is treated as earnings but it’s not just £20/week that’s taken from his ESA. 

    The disregard is £20/week for SMP the same as earnings and for every £1 of SMP above that the ESA is reduced by the same amount. 

    For example if her SMP is £150/week then the ESA is reduced by £130/week. 


    I would appreciate it if members wouldn't tag me please. I have all notifcations turned off and wouldn't want a member thinking i'm being rude by not replying.
    If i see a question that i know the answer to i will try my best to help.
  • tippi
    tippi Community member Posts: 22 Listener
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    Thanks Poppy for getting back. So say Guy was getting £200 a week ESA as a single man. His partner moves in and she gets £150 SMP; they then reduce Guy's ESA by £130 so he now gets £70? So as a couple with a baby on the way their combined income has increased from £200 a week to £220 a week? How can that be right and justified? It all just seems so unfair and loaded against disabled benefit claimants, making them like 2nd class citizens.
  • poppy123456
    poppy123456 Community member Posts: 57,289 Championing
    edited March 12
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    Income Related ESA is means tested and is less generous than Universal Credit if living with a partner that works or claims SMP like she does. They are not being treated like 2nd class citizens. It’s the law. 

    Going back to the other thread last year, you said they claimed UC is this still correct? If not then why didn’t they continue with that claim? 

    Edited please see comment below. 
    I would appreciate it if members wouldn't tag me please. I have all notifcations turned off and wouldn't want a member thinking i'm being rude by not replying.
    If i see a question that i know the answer to i will try my best to help.
  • poppy123456
    poppy123456 Community member Posts: 57,289 Championing
    edited March 12
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    Ok now I have the figures. ESA couples in the Support Group would be £205.90/week. If her SMP is £150/week then the ESA would be reduced by £130/week. Which would make the ESA £75.90/week. 

    The question about Universal Credit still applies. I’m very confused about what happened to the UC claim. 

    Is the overpayment related to when she first moved in quite sometime ago? 

    I would appreciate it if members wouldn't tag me please. I have all notifcations turned off and wouldn't want a member thinking i'm being rude by not replying.
    If i see a question that i know the answer to i will try my best to help.
  • tippi
    tippi Community member Posts: 22 Listener
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    Hi Poppy. Spot on! Guy and Jacquie bought their own house in May 2013 and when Guy reported this to DWP they told him his ESA would stop and he would get UC which he did. In Jan 2024 DWP hit Guy with a bill for overpaid ESA for the period whilst Jackie lived with us. We were and still are floored by this. If Guy was not entitled to ESA then he was entitled to UC from when Jacquie moved in? As you say UC is more generous than ESA so Guy has lost out financially + DWP are demanding he repays the ESA he received. Since Guy's disability was diagnosed back in 2010 he has always received 2 benefits - ESA and DLA, then ESA and PIP. This decision reduces Guy's benefits to just one for the period; just seems unfair but as you say it's the law. Sad, sad , sad.  
  • tippi
    tippi Community member Posts: 22 Listener
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    Sorry, edit....... 'brought their own house in 2023' 
  • poppy123456
    poppy123456 Community member Posts: 57,289 Championing
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    They didn't claim UC until around August 2023 correct? Sorry but it's not clear from your comments whether this is the case now. You mentioned that his ESA is now £70/week which indicates they are still claiming ESA.

    Fom when they lived together with you he should have reported the changes as soon as she moved in with you. As he didn't do that then yes there will be an overpayment. If she was working more than 24 hours per week at the time then he wouldn't have been entitled to any ESA so all of that will become an overpayment. 

    There's no automatic entitlement to UC and DWP to not automatically place anyone on to this. You need to claim it yourself and if you don't claim it there's no entitlement. 

    The reason he lost out financially was because he didn't report the changes and he didn't get some advice regarding his benefits. Had he done that then he would have been advised to claim UC with his partner.  

    I don't know how much overpayment he has but as I advised, if she was working 24+ hours per week from when she moved in with him there would have been no entitlement to ESA. I can't see that there's anything to challenge to be honest but I don't know the dates or the amount involved. For this reason I'd advise him to get some expert advice from an agency near you before he challenges the decision. Otherwise he could be wasting his time and theirs. 
    I would appreciate it if members wouldn't tag me please. I have all notifcations turned off and wouldn't want a member thinking i'm being rude by not replying.
    If i see a question that i know the answer to i will try my best to help.
  • tippi
    tippi Community member Posts: 22 Listener
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    Thanks for this Poppy. 
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