Under the conditions of ESA, which is an ‘out of work’ benefit, claimants are not allowed to earn more than a certain amount of money each week.
“Our new decision means you may have been overpaid,” the letter continues. “If the overpayment is recoverable, a separate decision will be sent to you advising you of the amount of overpayment and why it is recoverable from you.”
But the DWP has misunderstood its own rules. Under Regulation 40 (2) (b) of the ESA Regulations 2008, ESA claimants who are paid as local councillors, or who work for one full day or two half-days a week as a member of either the Disability Living Allowance Advisory Board or a social security appeal tribunal, maintain their eligibility for ESA despite their income.
Katherine’s income came from working as a disability-qualified panel member of a social security appeal tribunal, in which she heard appeals against DWP decisions. Therefore, her earnings should not have disqualified her from ESA as long as she worked no more than the equivalent of one day a week.
It is not the first time the DWP has wrongly pursued her over her earnings. Between March 2019 and March 2020, the DWP peppered her with 15 entitlement, overpayment and civil penalty letters – which were later either conceded by the department or set aside by tribunals. In 2019 the department began deducting more than £1,000 in supposedly overpaid benefits, plus a £50 penalty, incorrectly accusing her of failing to notify it of her working hours. After a three-year battle during which the DWP repeatedly insisted it was in the right, the upper tribunal ruled in December 2022 that the DWP had no right to recover the money – but the DWP has still only repaid the £50 penalty, not the illegal deductions nor a further £400 the department owes her from underpaying her benefits around the same time.
The lengthy proceedings, during which the DWP quadrupled the deductions from her benefits in order to recover the supposed overpayment, affected her mental health to the point that she attempted to take her own life, which she later informed the DWP of. The stress also nearly caused her to resign from her tribunal role three times during the years of proceedings. She had to declare that she was in dispute with the DWP prior to every tribunal hearing she presided over – a humiliating experience that forced her to disclose to everyone present that she had medical conditions and was claiming benefits.
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In her submission to the upper tribunal in December 2022, Katherine wrote: “They caused me harm and distress for nearly four years and I fear they will do so in the future.” Barely a year later, the DWP did it again – and she fears that the government’s new drives against benefit fraud will end up repeatedly targeting her, as their systems will not recognise the exemption for tribunal work in the ESA regulations.
“The DWP had discretion to waive any overpayment even if a claimant was at fault,” Katherine told the Big Issue. “But I was not at fault. Instead, the DWP chose to persecute me for almost four years, using public monies for a barrister to represent them. I was punished and fined for their own wrongdoings. The DWP did this to me despite holding medical evidence that its actions were a factor in my suicidality.
“After the pandemic, the DWP increased its deductions from me by 400% – in a cost of living crisis. The DWP ignored judgments from First-Tier and Upper Tribunals and it continues to treat me illegally. The DWP still owes me hundreds of pounds, including arrears from five years ago.
“The DWP caused me severe psychological distress and its harm is ongoing. There is no accountability because I cannot afford a lawyer. The damage to me is profound.”
Following enquiries by the Big Issue and Disability News Service, the DWP said it had refunded Katherine the deducted benefits.
“We have reimbursed the customer for the money previously recovered and apologise for any distress caused. This case is currently being reviewed,” a DWP spokesperson said.
The DWP also said that she was not currently subject to the recovery of any overpayments, in relation to the most recent letter she received.
However, Katherine told the Big Issue that she had only been refunded the £50 penalty by the DWP, not the remaining money it owes her.
“They say I am not currently subject to the recovery of any overpayments because their letter says an overpayment ‘may have occurred’,” she added. “Well, obviously they think it has if they are saying I am not entitled to ESA for around 14 months. They are calculating it. That’s why there’s no recovery currently. Either that, or they are going to prosecute me.”
Get help if you are struggling. Call Samaritans for free on 116 123, email jo@samaritans.org or visit samaritans.org for useful resources and advice on coping. Mind has a confidential information and support line, Mind Infoline, available on 0300 123 3393 (lines open 9am-6pm, Monday-Friday). For information on managing money and your mental health, see Mind’s advice.
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