Good morning and happy New Year to all.

Client had JSA overpayment due to excess capital. Explanation letter states..."I have checked Mr T's file and it does not include any capital information, therefore I am unable to advise on the amount of capital that he had at the time of the overpayment".

The decision was then made that the o/p was not recoverable. Our client has in the interim, re-paid by direct deductions some of this sum. We requested this be refunded by the DWP, who have refused on the basis that 'refunds will only be made if the decision is that there has been no overpayment and as there has still been a loss to public funds, a refund is not appropriate'.

Could anyone offer any advice/ideas?

Many thanks

dave

Have a look at the 'Overpayment Recovery Guide'. Available via Toolkit.

This earlier thread *may* be of interest:

www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=106&topic_id=2170&mesg_id=2170&page=

Happy new to you Dave.


I am a bit miffed about the whole thing. An overpayment can only be recovered once the original decision to award benefit has been varied or reversed on appeal or has been revised or superseded. Section 71 and 71(5A) of the SSAAct 1992 - (condition for recovery)

Once a decision has been made to vary and recover, those decisions are new decision, and are both appealable. It is not clear what DWP is doing here. First they seem to have revised/superseded the original decision, hence an overpayment decision, then they say it is not recoverable because there is no evidence of capital in excess.

The explanation letter states that there is no evidence (read; cannot find any information about excess capital at the time of the overpayment……). If that is what it says then there has been no ground to revise/supersed and recover via s9 or 10 of the SSAct 1998 hence, no recovery can be made.

Given what you have described, it does not seem that the DWP used its discretion not to recover where there was an overpayment, this appears to be that were no grounds to vary the original decision to give rise to an overpayment decision in the first place. So the condition for recovery does not seem to have been established. Have a look at the terms of the decisions and may be a late appeal? It may get supersseded.

How can they have calculated the overpayment if they don't know how much capital he had? It could be highly relevant to eg a diminishing capital calculation, or even to the issue of whether there was an overpayment at all. Or - hang on - are they saying they can't even prove he had any capital at all, so couldn't prove there was an overpayemnt?

Sounds deeply fishy.