I’ve been having fun with the debt centre again.

My questions are, under what circumstances can the DWP revise a decision to say that a previously unrecoverable overpayment is recoverable, and in what circumstances can an overpayment be recovered from the second person (not the ‘lead name’) in a joint claim.

The short story is:

Couple each claim IB, then Mrs makes the claim for IS, writing on the form that they had both made a claim for IB. IS comes into payment, then Mrs’ IB comes into payment and IS is reduced to take this into account without Mrs contacting DWP. Then Mr’s IB claim comes into payment. IS amount does not alter – this is what causes overpayment.

Anyway, DWP try to recover overpayment from Mrs. We appeal this and get a decision stating they have reviewed decision, it is not recoverable.

When I ring DWP to ask why, they say they have decided that it is recoverable from Mr instead. But Mr has never had any correspondence or decision regarding this.

Three months later Mrs gets a new decision saying oh yes it is recoverable from her. This decision is identical to the first decision we appealed that was then reviewed. I have spoken to debt centre and they will not tell me why they have changed their mind. We have had to put a new appeal in.

Can they revise a recoverability decision like this whenever they fancy, or only in certain circumstances? I cannot imagine that they have new evidence. The only evidence I can think of is the claim form, DWP correspondence and my client’s account of events.

Jane

i suspect that what happened is that the overpayment was considered under section 71 and at some point after giving the decision, somebody has realized that section 74 applied.

there is the 'res adjudicata' thingy - not my strong point, and hopefully somebody else can tell about it better than i , but there has to be a limit to how much people can be messed about with by the Secretary of State because he doesn't train his staff to do their jobs properly. your client has been told once that she doesn't have to repay the overpayment, it's fairly inexcusable for him to go back on his word, but to do so on the grounds of his own ignorance and incompetence just brings the department into disrepute, and for crying out loud, isn't it time these managerial twits in charge understood a thing or two about the responsibilities of running a PUBLIC SERVICE now half a trillion quid of tax payers money has gone to bail out banks and business...

your client provided the information on her claim form enabling the SoS to do something with it and they couldn't be bothered. then they can't get the o/p decision right. suggest you argue and complain to the MP.

they can't revise a recoverability decision whenever they feel like it - i don't think section 9 of SSA gives authority to revise section 71 decisions - any offers on this one???

There has been a recent CD stating that the concept of res judicita has no place in the Social Security regime as it is ousted by section 17 of The Social Security Act 1998 (finality of decisions).

So, thinking along the same lines as Jan,my arguments to the tribunal would be as follows.

First, if there has been a formal decision that an overpayment is not recoverable then that decision should be final under section 17 of The Social Security Act 1998 read in conjunction with section 8(1)(c) and (4).

Second (if the basis of the overpayment is failure to disclose), if the ICB is administered in the same office as the IS, then unless the claimant was specifically and clearly instructed to disclose the payment of ICB to the IS section (which I doubt she was) then the overpayment is not recoverable as the chain of causation (required by section 71 of The Administration Act) between the claimant’s failure to disclose and the overpayment is broken and the overpayment is caused by official error (see CIS/1887/2002, for example).

Finally, an overpayment can only be recovered from the claimant as only the claimant is under a duty to disclose. There is no such thing as a ‘joint claim’ for IS so any overpayment cannot be recoverable from the claimant’s partner.

Nevip: Do you by any chance have the citation for the "res judicata" CD?

With regard to the OP, would there be any mileage in arguing estoppel?

Section 8 makes it clear that it “shall be for the SoS…. to make any decision that falls to be made under or by virtue of a relevant enactment”. Relevant enactment includes the Administration Act (see subs 4).

Section 71 gives the SoS a power to recover an overpayment but does not compel him to do so. So it could be that if he decides to do so that decision is then a section 8 decision and if that is right then the decision could be revised by section 9 or superseded by section 10.

However, if that view is correct then my section 17 argument is weakened as the section starts out “subject to the provisions of this chapter…”. But, if that is so then the decision could only be revised or superseded if a proper ground could be made out under regs 3 or 6 of the D&A Regs,

There: clear as mud!!

If that is incorrect, then there would appear to be no power to revise the overpayment decision under section 9.

Kevin, I'll try and dig it out for you.

Kevin

See CH/704/2005, paragraph 14.

Regards
Paul

I think CH/704/2005 deals with the realtionship between the courts and tribunals.

CIS/2540/2004 deals with realtionships between tribunals.
PB

Thats true but CH/704/2005, paragraph 14 states:

"To deal with Miss Meacher’s last point first, I agree that there is virtually no application of the principal of res judicata in the determination of social security benefit and housing benefit questions. In relation to Social Security benefit determinations, section 17 of the Social Security Act 1998 enacts:-

“(1) Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulation under section 11 above, any decision made in accordance with those regulations shall be final.

(2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of –

(a) further such decisions;

(b) decisions made under the Child Support Act; and

(c) decisions made under the Vaccine Damaged Payments Act.

I regard sub-section (1) as a limited statutory estoppel which allows claimants and the Secretary of State to revisit, by way of revision, supersession or appeal, past decisions in order to take account of mistakes and changes in the fortunes and misfortunes of claimants. Sub-section (2) provides that there is no estoppel on the redetermination of factual issues relevant to decisions except in the few cases in which regulations provide for finality of such determinations. The provision in the housing benefit legislation corresponding to section 17(1) is section 68 of the Child Support, Pensions and Social Security Act 2000 as read with paragraph 11 of Schedule 7 to that Act. There seems to be no equivalent to section 17(2). Nevertheless, in the light of those provisions I agree with Miss Meacher that decisions by the statutory authorities do not create an estoppel on later decisions except to a very limited extent".

Thank you very much for your comments. I imagine that I will be waiting at least 6 months for a response to the GL24, for some reason they are sending them all to Glasgow.

Jane

I am not sure that estoppel would help you - it usually requires the person to whom the statement has been made acting on it to his detriment, so that it would not be reasonable now to impose a differnt version of the decision on him.

Was the decision that the overpayment was not recoverable in those terms or was it that "the overpayment is not recoverable from you"

If it was the former, then I can see no grounds to revise it. Its not enough that another officer takes a different view, there needs to be grounds as specified in the Social Security and Child Suport (Decisions and Appeals ) Regs.

If it was the latter, I think there would be grounds to challenge the new decision in that the person from whom an overpayment is recoverable will always be a person affected and a party to any appeal proceedings.(see CH/3817/2004, CTC/3543/2004 and R(H)6/06)

I cant see how the alleged overpayment can be recoverable under S71 from the claimants partner anyway as the duty to disclose rests on the claimant (CIS/1996/2006)

If I may revive this thread - it has finally come to tribunal and I'm writing the sub.

To clarify the situation -

1) decision issued that IS overpayment is recoverable

2) appeal made

3) new decision “we have looked again at the facts and evidence…….. As a result we have changed our decision, and have decided that the overpayment is not recoverable and you do not have to pay this back.”

4) another new decision issued (which doesn’t refer to any of the above) but states that the same overpayment is recoverable.

5) appeal made against this last decision- which is about to come to tribunal.

I think jj was right in the post above - at point 3 the decision was considered under section 71 (misrepresentation) and found not to be recoverable. They later at point 4 saw their error and considered it again under 74 (late payment).


So… in the submission I’m arguing that the decision at point 3 should have been final under section 17 of the social security act (as nevip pointed out above), and that the decision at point 3 must have been a revision decision under section 9 of the social security act 1998. This act gives the SS power to revise section 8 (original decisions) and section 11 (supersession) decisions, but not to revise section 9 decisions.

This is making my head spin, so I would appreciate any comments.

Thanks

Jane

So on this basis let us assume a reversed set of facts on which originally the DWP decided that there has been an overpayment, but that it was not recoverable and wrote to the claimant to say so.

Then they looked at it again for some reason and decided they had got it wrong, and it was recoverable, so they write in and say it was.

Third go round, they look at it again and say, "no, we were wrong the second time, it definitely ISN'T recoverable", and this decision is unarguable on a proper construction of the facts (just as the s 74 construction in the case under discussion appears to be unarguably correct).

Are we saying that the DWP has a power to revise decisions when they are to the benefit of claimants but not when they aren't? Decisions 1 and 2 in this case were patently wrong and decision 3 is right (or so it appears to me).

Answers on a post card, and sauce for the goose etc....

No, I think what I am arguing is that the DWP can only revise certain decisions in specific circumstances. And this isn't one of them.

The decision at point three was an error, because they should have considered s74, and if they had made the decision at point 4 in the first place which is based on s74, then there would be no argument.

I think that errors like this can only be changed by a revision, but you cannot revise a revision again. Claimants and the Secretary of State have different rights and powers when it comes to revisions.

I think anyway... I do appreceate your comment, I'm still trying to work this one out.