A client has been overpaid Income Support. The DWP determined that the overpayment was recoverable 4-5 years ago. The client did not appeal against the recoverability of the overpayment but there may have been valid arguments in her favour. Recovery was commenced by deducting from benefit but now client has come off benefit so the overpayment recovery has been passed to a debt collection agency.

Client is out of time for appealing. I have suggested she may ask DWP to exercise discretion not to recover. However, if this request is refused and the matter ultimately goes to the County Court, can she challenge recoverability in court? How far do DWP have to go to prove it is a recoverable overpayment? Is it sufficient for DWP to say that as she is out of time for appealing, the overpayment is "deemed" recoverable.

I am not sure what evidence they could use in court anyway as most of the original paperwork at the time the overpayment arose has been destroyed. Are there technical arguments for saying the DWP cannot prove in court that the debt is owed?

Any advice or experiences of this would be welcome

I suppose you have to differentiate between an Income support overpayment which can be recovered by direct deductions from benefit and a debt which can be recovered by the DWP or a debt collecting agency using a court order.

If the DWP wish to enforce a debt through the county court (sheriff court in Scotland), the court must enforce the debt once the DWP produce a decison of a decison maker, tribunal or commissioner.

You can ask for a stay of execution from the court if you wish to appeal a decision makers decision or go to a commissioner.

(see cpag handbook 2004-2005 pg 1119)

Although the claimant is out-of-time for appealing they can request an anytime revision of the decision, and if this is unsuccessful appeal against that decision. You will have to have grounds for an anytime revision but your posting seems to suggest there may well be grounds.

I am not so certain that a refusal to revise for "official error" can be challenged (Tribunal of Comms. in CIS/4/2003):

A summary is available here-
http://www.rightsnet.org.uk/cgi-bin/publisher/display.cgi?1715-0104-6214+swopshop#CIS/4/2003

However, I don't see why the o/p decision cannot be superseded (only difference would be that any money already recovered cannot be re(over)paid if such an appeal succeeded.

I have seen cases where this was done and Tribunals seemed to accept that it could happen.

I wasn't aware of CIS/4/2003. On a brief reading of it I agree that a decision to refuse to revise on the grounds of 'official error' is not appealable. As you say, in the circumstances of the original query, supersession (and an appeal against a decision refusing to supersede) would be possible.

I too have briefly read the decision, but it has raised an interesting point for me in that when IS claimants are migrated onto tax credits, the criteria for recoverbility of overpayments will change and be far more draconian from the claimants point of view

Scope for an Article 14 challenge?

I now have 4 cases of Income Support recovery where the clients say they do not have any knowledge of an overpayment and did not have an opportunity to challenge any decision to recover. They range from alleged overpayments from 1983 to 1997. In all cases I have written to the Debt Recovery dept. of DWP ( now centralised in Bradford ) requesting info. on when decision was made, breakdown of alleged o/payment etc.

Can anyone shine any light on this new trend !