Income during a period where Incapacity Benefit has been withdrawn

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    Customer claiming HB/CTB based upon her entitlement to incapacity benefit for some considerable years.  Following a joint investigation between DWP and us, it was found that the customer worked full time on a market stall from April to August. She was seen moving the stall around, carrying boxes, doing heavy duty work etc. In the IUC she admitted she had been on the stall full time to assist her friend, but maintained she received no financial remuneration for it whatsoever. The stall onwer confirmed she did not receive anything for the full time help.

    The DWP adjudicated that the claimant had been in remunerative work, and they removed incapacity benefit for the months that she worked, causing an overpayment. We did the same, and we used a notional income for the period concerned (used the minimum wage for the hours she worked on the stall). There was an overpayment of both HB and CTB because of the notional earnings.  The claimant appealed to the DWP about her incapacity benefit and said whilst she accepted she worked and was therefore not "incapacitated" she did not receive payment. They revised their decision, but only to remove the word "remunerative" because there was no evidence she was paid and therefore their overpayment remained the same because she still had no entitlement to incapacity benefit.

    She has asked us to look again at using notional earnings.  There is no evidence to establish that she was paid – both she and the stall holder say she was not.  If we accept (reluctantly) that she received no "earnings" from the stall holder for the period she helped out, are we still able to include the amount of incapacity benefit she received weekly as her income (but not award the disability premium)?? She may have to repay the incapacity benefit, so I am not sure that we can use it but as she did physically receive that money each week, are we still able to use it?  Thanks Therese


    I think you need to look at regulation 42(9) and (10). 42(9) states that where a person performs a service for someone else and does not recoieve payments, then the LA “shall” treat the claimant qas possessing earnings reasonable for that employment. The same regulation does go on to say that if the person who took on the claimant could not afford to pay the claimant, you do not count any earnings. 42(10) gives a list of exemptions, which does not apply in this case from the information given.

    I wouldn’t worry so much that no earnings were paid. That’s the whole idea of notional income – income that should have been received, but wasn’t.


    Thanks very much Jamcon. Therese

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