Can anyone please help with this enquiry as the legislation appears unclear to me:

A client lodges a late appeal against the recovery of an overpayment in March. The late appeal is accepted but in September the DWP supersede the decision in the client's favour, recovery ceases and the appeal lapses. Recovery ceases from September following the supersession.

Should the recovery cease from March however (when an application was made) or from September (when the supersession was made)?

Section 10(5) of the SSA 1998 states '... a decision under this section shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.'

As recovery had continued up until the date of the supersession would the client be able to argue now that this should have stopped with their application and be refunded the hundreds of pounds recovered in the intervening period? On what basis might a tribunal decide to opt for one date of the other?

Any thoughts on this would be much appreciated.

any idea why it's a supersession not a revision? a change of circumstances after the date of original decision wouldn't affect the O/p dceision, which covers a retrospective period.

i'd expect the decision to be a revision, to replace the original decision and your client to get his money back.

jj

The basis of looking again at the decision seems to be on 'ignorance or mistake as to a material fact' grounds rather than on a change of circumstances.

Revisions on 'ignorance or mistake' grounds seem to be restricted to those situations where the original decision was more advantageous to the claimant and, as the original decision was to recover benefit, this does not apply. This leaves the only other option as a supersession on the 'ignorance or mistake' grounds and this, unfortunately, has limitations on when it applies from. As I state though, quite when it applies from seems unclear to me and yet this will have important implications for the claimant in terms of how much of the overpayment could be recovered and whether there is any 'refund' of already recovered amounts due.

hi kurt

isn't equality great? i would have thought that he could get in under reg 3 (4A) - revision where there is an appeal against original decision - you say late appeal was admitted.

maybe it's all getting too technical? with an overpayment decision, either a recoverable overpayment occurred or it didn't. no recovery can be made without a decision that a recoverable overpayment occurred. if the overpayment decision has been changed to no recoverable overpayment, the SoS has no right to the money alrady recovered and should refund it, unless the client wants to repay it voluntarily.

are you really facing an argument that recovery between the two dates of decisions should be made?

jj