I am looking for some help re overpayments,
Client was abroad for 9 years. She did not tell Child Benefit that she was going abroad.
Client states that her estranged husband sold her Child Benefit order book to a woman, and that this lady cashed it for 9 years.
Client has now returned to the UK and Child Benefit have raised 9 years worth of overpayment (ie a substantial sum of money).
I am aware of overpayment regs, ie client's failure to disclose the material fact (that she went abroad) did cause the overpayment.
I am just writing to see if anyone can think of an argument for the client?
Has anyone tried to argue that client was not overpaid benefit where they did not actually receive the money?
Any help/ suggestions/ comments would be gratefully received.

The problem is that section 71 of the Admin Act deems it irrelevant that the person who failed to disclose did not benefit from the failure to disclose, it is enough that benefit was paid which would not have been paid but for the failure to disclose.

However, section 71 only determines the right of recoverability it does not make it mandatory to pursue recovery. Perhaps your client could attempt to persuade the Department to take legal action against her estranged husband and the person who bought the book. If she reports this to the police herself then the Department may be more willing to listen.

Unfortunately since the recent decisions on overpayments there will be no defence against recovery if the relevant person both knew of the fact to be disclosed and had been given unambiguous instructions that the relevant fact had to be disclosed.

Another option may be to take civil action against her husband and the person who bought the book to compensate her for the financial loss incurred by re-paying the overpayment.

Regards
Paul

there is an argument that the causal link between the failure to disclose and the overpayment has been broken by the fraudulent encashment of the child benefit book by a person other than your client. She couldn't physically cash the book at a PO because she was abroad. Providing you can satisfy the IR that your client did not collude with the fraud, it would be unfair to recover the loss from your client. what paul says about reporting the matter is very relevent.

the husband allegedly did collude with the fraud, and if he was the alternative payee, you probably have a good chance of persuading the IR that the overpayment should be recovered from him, not the client.

i think you need more information from client, as well as explaining the risks ...

jj

Hi Jan, You been away?

hiya paul.

aye - 3 weeks leave. have tent, will travel. : ) i had a lovely week around edinburgh beginning of july, and a couple of days in devon last week, and have actually managed to get a bit of a sun tan...

we had a tornado here yesterday, btw...the police had the road up from the centre blocked off...i thought it might be another of them there raids, but it was just a wall hit a car...

jan