I've a client really struggling financially. She's on IS £55.65 after finishing work (suffered a stroke). Moved into LA accom and applied for two CLs currently recovered at £8 pw with second loan to commence at >£13pw (I've since helped her obtain CCG but these loans had already been awarded before she sought advice). DWP will not use discretion to reschedule as say she has no continuing commitments. They're aware of payments of £2.80 pw for c.tax arrears, £6 for laundry (dominant hand paralysed) and £5.00 bus fares to town (is v. depressed just sitting in flat as little furniture and not particularly comfortable) but they say this is normal expenditure. Can anyone suggest some persuasive argument to change the very subjective view of the SFO ? - otherwise I can only assume this would be an application for jr ?

Hi Sue, Neil Bateman (he regularly puts his ten pennyworth in the discussion forum and has his own website - Mmm.i could apply for commission at this rate) wrote a really good article in care and health magazine page 32 may 11th - may 17th 2004 about getting loans written off.

Basically his argument (i am paraphrasing) was along the lines of if a client is in debt, " saddled with social fund loans " etc.

Is to be bold and apply to have it written off - using Section 78 of the Social Security Administration Act 1992.

see ya andy

Cheers for that Andy. I've no problem in being bold and asking for a write off but having looked at s78 I can't see anything which implies they might consider it. Para.1 states "...SHALL be recoverable...".
Para.2 states "Without prejudice to any other method of recovery, the SoS MAY recover by deduction from prescribed benefits" but this would imply it would be recovered by alternative means. Am I missing something ?

Sue

"Shall be recoverable" is not quite the same thing as "shall be recovered"!

Jim

Commission? A chance would be fine thing!

If you email me, I can can send you a copy of my article. Essentially S 78 confers a discretion by using the word "recoverable" as opposed to eg "shall be recovered". Similar wording exists in S 28 Tax Credits Act (dealing with overpayments of tax credits) and it is now accepted that the IR can waive recovery of overpayments because of this general discretion.

Possible problems: 1) DWP appears to have no procedures for waiving recovery 2) DWP staff seem to be unaware of the discretion to waive. 3) People must agree to repay (required by the Directions) before a loan is awarded so to then argue for waiving may be difficult unless their circumstances have changed (which may include becoming poorer)or if they were misled into agreeing to repay. But it is hard to see what could be lost by seeking waiver of recovery or rescheduling - unless someone wishes to claim a SF loan in the future.

I suspect that we need a good judicial review about this issue and I would advise talking to CPAG before starting JR action if your initial requests are not sucessful. There's also a moot point about the jurisdiction of SFIs over repayment rates.

hi neil -

happy to publish your article here?

cheers - shawn

Happy to send it to you, but I'll need to clear it with Care and Health first.

cool ... happy to link to them/do all the usual acknowledgement stuff

Many thanks for your responses. I'll look forward to seeing the article on the site as I'm sure will everyone else.
Sue

Shawn et al; "Care & Health" is a useful magazine to add to WRO/WRU reading list, and most Local Authorities can get it free. I do, mainly for "St. Neil's" words of wisdom (where's my commission?).
Might it be useful to contact them and ask them if they want to advertise their journal on Rightsnet in return for access to Neil's articles? Just a thought....

Not at all sure about the saint title, but thanks for the flattery. And no, there's no commission - why does everyone think that all writers are wealthy?!

Seriously though, assuming the technology is working, a scan of the article should soon be up on the Rightsnet website. I'll have to talk to Care and Health about the practicalities and legalities of all my articles being available. In principle, I don't have problem.

as anyone will testify, if they have the dubious pleasure of knowing me, this language is extremely modest and temperate! Take your compliments whilst you can, because tomorrow it'll come back and bite you in ...

I think your articles, which are always well written and topical, would be a useful addition to Rightsnet, and I think any LA not getting C&H mag should consider subscribing. In fact, can we have a section in Toolkit on useful journals, addresses for subsriptions, etc. ? More work for Shawn!!

Hi Sue

Although this doesn't answer your question or address the real issue about recovering SF loans, is it worth maximising your clients income by claiming DLA? The weakness left by the stroke and the effects of her depression sound like good grounds for an award of DLA. If awarded, her IS will also increase. This will obviously make it easier for her to pay her SF loan and improve quality of life.

Shona

Thanks Shona but I've already submitted the DLA form for her - hopefully we'll get both the dp and sdp.

Here is a link to a scanned copy of my article. It's a 9MB file so it will take time to download for those with dial-up modems.

A couple of points about this particular article:

1) It was written for non experts like social workers.
2) The discretion to waive recovery should be exercised according to individual circumstances and not by using a blanket rule. There may well be compelling cases for a write off and yet it could be lawful in particular cases and having regard to all the circumstances, not to waive recovery. There is no general right to have loans written-off/waived.
3) The fact that claimants sign an agreement to repay before accepting a loan might be a barrier unless peoples' circumstances subsequently change.
4) Experience shows that DWP staff administering the SF are unaware of both the potential for waiving recovery and of the public law principles about how discretion shoud be exercised (the same applies to e.g. waiving recovery of benefit overpayments). It may well be necessary to write locally first, be refused and then write a letter before action to the DWP's solicitors in order to make any progress.
5) If anyone wishes to judicially review a refusal to waive recovery, they must talk to CPAG before they start any litigation - it would be really damaging for millions of claimants to have a misconceived or factually unhelpful case go to Court.

http://www.rightsnet.org.uk/pdfs/NB_C&H_SF_article.doc

Many thanks for the article Ian and Shawn (and of course C&H). I'll get my request in today and see how it goes - fingers xd.

who is Ian?

I think we should be told. (Apols to Private Eye.)

Jim

"It's Neil Jim, but not as we know him" - apologies to Star Trek, can't you tell it's Friday ...

humble apologies Neil but not to the double act who've sp(l)otted the error.

spoken like a true solicitor! and lay off splott!

Not a solicitor (though hopefully much better informed) but the lingo must rub off after 14 long years in the job. Must get to see this infamous splott.
Iechyd Da

my god, someone who can spell it too! Normally we get yaki dar - like we're from Mongolia or somewhere! (as in Yaks).
you can be assurred of a warm welcome in the Peoples Republic of Splott (or Upper Bay as the estate agents now call it). No Tigers left in Tiger Bay though!

Yeah. And why can't we have an apology too !

Jim

go on then cariad (perhaps that'not grammatically correct but no doubt the boyo will let us know)

hey, the "boyo" was born in Bristol and barely speaks a word of Welsh! Sorry, but it was fun whilst it lasted!! I live in Splott, didn't say I was born there xx

Help! Translation please!

Jim

I think 'cariad' means love and 'iechyd da' good day/morning.

Anyway all this banter's not getting my SF write off letter done.

Byeee

In the interest of completeness:
Iechyd Dda means Good Health