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Forum Home  →  Discussion  →  Disability benefits  →  Thread

ESA Overpayment

Bcfu
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Blackpool Centre For Unemployed

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Total Posts: 204

Joined: 9 July 2020

Hi

Can anyone point me in the direction of where the legislation etc is for ESA overpayments and capital disregards as all I can seem to find is UC regs.

It’s a rather complicated case which I’ve not really dealt with before so if anyone knows of any guidance regarding this, please do let me know.

I’m short, my client has severe learning difficulties and cognitive problems and is the beneficiary of a trust from his late mothers estate, which has clear instructions to only give a certain amount of money to them at a time. When clearing out his mothers house, he found around 20K in cash and was wrongly advised to put this in the bank (he should have given this to the trust to manage). He eventually gave this back to the trust but ESA have obviously stopped his benefit due to being over the savings limits.

Any initial advice would be extremely appreciated

Thanks Adam

James Craig
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Welfare Adviser - Young Lives vs Cancer, Hammersmith & Fulham

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It’s the Employment and Support Allowance Regulations 2008. Schedule 9 deals with disregarded capital.

On the facts as you have described them, I would have thought a good argument might be that the £20k, although in his bank account for a while, was never his money, as it was part of his mother’s estate. Put another way, he may have been the legal owner of the money while it was in his bank account, but the beneficial owner was the executor of his mother’s estate.

DMG Chapter 52:
52070 Only the capital where people are the beneficial owners is included when working out what
capital they have.

Dan Manville
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Greater Manchester Law Centre

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Was he even the legal owner?

Paul Stockton
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Epping Forest CAB

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I think technically he was the legal owner - for instance, as against the bank he was the only person who could withdraw the money - but he held it on a resulting trust for the executor of the estate. To persuade the DWP you would presumably have to provide evidence as to how the money came to be in his account and produce the mother’s will showing that her estate went into the trust, not direct to him.