ESA overpayment – recovery from claimant and apptee R(IS)5/03 – exception ‘apptee failed to use ESA for claimant’s benefit

ESA overpayment occurred when appointee (now ex-appointee and ex-partner) was responsible for my client’s ESA claim.

DWP is attempting to recover ESA overpayment from my client only – the claimant – he is adamant DWP should recover from his now ex-partner/ex-appointee so we have appealed.

I am trying to argue o/p should be recovered from appointee only under para 63 R(IS) 5/03 – first exception – my client alleges she failed to use the ESA ’ for his benefit’.

Judge has yet to issue directions as he (claimant)  alleges she (ex-appointee)  has subject him to domestic abuse,  but they are still living under the same roof, so FtT Judge adjourned hearing as Judge believes ex-partner   needs to be made party to appeal but he wants to ensure my client is safe before this goes ahead.

However, the FtT Judge indicated during hearing that we are going to have to present a very persuasive argument regarding the ‘not used for his benefit’ ground.

My client claims ex-appointee was tardy in paying household bills ( but there appears to be no significant rent or utility arrears) that she spent the money on herself but did not buy him clothes or other necessities.  Given the acrimonious nature of the ‘relationship’ between the claimant and ex-appointee/ex-partner details on such matters are a little ‘cloudy’.

Any suggestions regarding other areas of spending I could consider with regard to ‘not for the benefit’  issue would be welcomed – indeed any ideas as to how to strengthen the argument would be greatly appreciated.

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