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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

DWP taking more than the Overpayment

Daimo65
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Welfare Rights Southway Housing Trust

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Total Posts: 17

Joined: 29 May 2015

So I no I’m not going totally insane and have now moved to a parallel universe can some please clarify a point to me.
I have a client who openly admits he had an overpayment and agrees it should have been recovered ( no Problem so far) However due to usual bits and bobs only best known to the DWP he attended an assessment he was refused ESA and our intervention resulted in a successful appeal. Now here’s where it starts getting interesting. Client was already having deductions made from his benefit for the OP. Then the back pay from the appeal was offset against the OP leaving a small amount outstanding which given his direct deductions should have been cleared in around 3 months At this point the OP should have been paid off .  However During this process client became entitled to SDP but due to DWP delays he was entitled to considerable back pay. Strangely this FULL sum was offset against the OP.
We have been challenging the recovery now for several months through the MP’s office and despite providing to the dwp, client’s letters showing original amount, the DWP have said the OP was more. We have requested they provide proof and their latest response is

In conclusion I would like to apologise for the time taken to gather the information needed to respond to Mr xxxxx issues. I am unable to provide copies of the letters requested by Mr xxxxx

The Data Protection Act 1998 dictates that “personal data kept for any purpose should not be kept for longer than necessary”. For DWP, these retention periods have been determined by the maximum review and appeal time limits which, in general, generate a retention principle of 14 months.

Once letters leave the Department we have no jurisdiction on the actual delivery or the timescales taken. Undeliverable post is generally returned to our returned mail section in Belfast and this address appears on the back of our envelopes. There is no record of post being returned undelivered for . It is presumed that any such letters would have been processed in the usual way by Royal Mail. It is possible that items of mail can go astray, but on balance of probabilities, it must be assumed that the letter had been delivered correctly. The burden of establishing the probability of non-delivery lies with the recipient.

Any input would assist in avoiding me going over the edge .

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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Total Posts: 1116

Joined: 25 February 2014

Well, given that there’s no time-limit for recovery of an overpayment where it’s being recovered via deductions from benefit, in circumstances where the client agrees there was an overpayment the question of whether your client was sent (or received) a particular letter notifying him of the amount of overpayment is a bit of a red herring*. The real issue here is what evidence does the DWP have for the overpayment being different (and more than) that given in the notice which your client does have/did receive.

- i.e. claimant says overpayment is £x - he has at least some evidence for this (the notice) - DWP is saying, no it’s £y and so you still owe £z - it cannot just pull this figure out of the air and has to offer some evidence for its figures (this need not be letters - it could be computer records from the time showing how the overpayment was calculated). If the DWP cannot produce any evidence for its position then I would be thinking complaint to Parliamentary Ombudsman, judicial review (if I could get solicitor to take case) and/or claim for money judgement in the county court…

* - unless the client is saying “I agree I was overpaid £x - but if I’d received a decision saying I was overpaid £y I would have appealed.” and as no decision notice for overpayment £y ever received, and DWP cannot establish decision issued, client could conceivably still appeal now as could argue time limit did not begin to run.

Another angle - what benefit was the client overpaid? When? Why? In what circumstances? If you know the answers to these questions in the necessary detail, it should allow you to work out whether the DWP’s figure or client’s figure is the correct one. Bit of a pain, but possible…..