Would welcome opinions on this.

Client has ICB overpayment and appeal lodged. DWP making ongoing deductions from benefit without client's agreement despite my written request to the contrary.

Overpayment determined not recoverable by tribunal as determined that client did not fail to disclose relevant material fact.

Debt Recovery Centre now refusing to repay amount recovered. Qouted from guidance which they offered to fax me. Told them to forget that and fax me the legislation they were relying on. Bloody fuming! Informed them that we would sue for debt in the county court. They have still not faxed me.

Interestingly manager of local JC appeals section agrees with me.

Cannot work on the case further at this time as not in main office where file is.

Am I missing something here or am I approaching burn out?

Deep breaths - lotus position - after me "Om Mani Padme Hum"

Hi Sue

Lol! I've arranged to go for 'a pint'(s) with a colleague instead. He's currently at war with HB and between us were gonna put the world to rights.

If we had a railway station in Leigh I'd jump on the train and join you.

They have finally faxed me.

They are saying that benefit can only be legally payable if authorized by a valid entitlement decision and the fact that the OP is later found to be non-recoverable does not provide the SoS with a valid decision authorizing repayment to the claimant.

This appears to be an entirely circular argument. The original award of benefit was authorized by a valid entitlement decision. Just because the decision was later superseded on a change of circs does not remove the validity of the original decision which was valid at the time. The issue is not whether there is (or needs to be) a valid decision authorizing repayment (that does not flow from the original award decision) but that the SoS has no right to recover. The only right the SoS may have is to keep money voluntary re-paid where the claimant has been fully informed of his rights.

As a tribunal stands in the shoes of the decision maker then the tribunal's decision that the OP is not recoverable says just that. The money is the claimants should he choose to keep it. The Department have no right to recover, or to withhold money retained by reducing his lawful entitlement to benefit without his consent, (or uninformed consent, come to that).

Am I losing the plot? Someone please tell me I'm not.

the problem as i see it is that the Sec.of State's representative on earth is talking out of his ass. Don't stand too close, extinguish all naked flames, etc...find another secretary of state's ass to talk to...they only wear one hat in debt recovery...

"They are saying that benefit can only be legally payable if authorized by a valid entitlement decision and the fact that the OP is later found to be non-recoverable does not provide the SoS with a valid decision authorizing repayment to the claimant."


they still have to revise the unlawful decision awarding benefit at nine quid or so a week less than the amount prescribed by law, and pay his arrears...

sorry about the white space, i deleted a rant - maybe shawn can clear it up>
i got distracted part way through replying - my colleague was telling me about the question in her law exam she had trouble with, to do with trusts, and the lessons learned from robber baron Maxwell...

nothing on the 1998 Social Security Act though...

Hi Jan

I'm going to write a detailed letter to Debt Recovery on Monday and copy it to the DWP legal department, the appeals section of the local jobcenter and The Tribunals Service. I'm not letting this one go.

Hi Paul,

Go get um boy!

1. I suppose your case represents the prevailing political orthodoxy/ideology which has permeated all strata's of society, its almost dignifying it calling it Kafakaesque.

But coming back to the wider point, overpayments relationship between local JCP and debt recovery/management. We're (my day job local authority) in the process of getting a late appeal together challenging an overpayment decision from last summer. Anyway phoned Exeter BDC to get the date of the decision i.e. that the overpayment is recoverable, and all they (customer services) could tell me and explained their role is to flag up the o/p, pass the info on to Debt recovery/management who then issue the decision? that o/p is recoverable, but they don't have that info available on their computer systems? So i would have to ring debt recovery for that info? which i did etc etc was given a date.

Which as everyone has pointed out with your case Paul completely bypasses the whole appeal/adjudication system which seems to be the norm now, and oh gawd i feel a rant too coming on and i've lost my thread and i don't care because i feel grumpy now.

see ya andy

keep us posted. : )

clearly the same debt recovery section that insist they can ignore the limitation act when it suits them....

Thanks for the support so far of people whose opinions I respect. I feel a lot better for that.

Just picked up on this one as I was on leave last week.
However, I have a number of similar cases to this currently ongoing with the local MP and would be happy to share my experiences/arguments with you if you want to give me a ring on 01667 305002.
Lorna.

After several phone calls with a very nice person from the DWP solicitor's office I've finally received written confirmation that (and I quote) "our client's Debt management in Corby have decided on this occasion to issue a refund to Mr........."

In other words, on legal advice they've had no bloody option. However, it looks like it will still be case of fighting Corby on a case by case nationally. I'll bet their guidance won't change and this is disapointing. Still, a good result for my client

If anyone has any similar cases to fight then you can have a copy of the letter I sent to them outlining the legal position if you think it will help.

Regards All
Paul

I hate to put a spanner in the works... but I think they can refuse to refund. I can't remember the in's & out's but I'm fairly certain I'm right. I had a spate of these a while back and got an opinion from CPAG. DWP did refund in a sense, via ex gratia compensation payments for administrative errors (recovering whilst appeal pending) but we didn't get the whole lot back. I'll have to look it up again... Anyone else?

Below is the letter I sent. I strongly believe that the arguments I outline need to be met in full and cannot be merely brushed aside as the ravings of a madman. All comments welcome, supportive or critical.



"Mr ………. was first awarded an increase in his Incapacity Benefit in respect of a dependant on 00/00/00. In 2006 that decision was superseded under section 10 of the Social Security Act 1998 and the dependant’s addition was withdrawn. On 00/00/00 a further decision was made under section 71 of the Social Security Administration Act 1992 that Mr ……… had been overpaid the sum of £……… because it was alleged that he had failed to disclose the material fact that his wife’s earnings had increased and that that sum was recoverable from him.

A Social Security Appeal Tribunal sitting on 00/00/00 overturned that decision and determined that although there had been an overpayment it was not recoverable as it was satisfied that Mr ……..had not failed to disclose increases in his wife’s earnings.

While the appeal was waiting for disposal the Debt Recovery Centre had begun to recover the overpayment by direct deductions from Mr ……..’s ongoing award of Incapacity Benefit, despite our request, made on 00/00/00, not to do so until the appeal had finally been disposed of.

On contacting the Debt Recovery Centre on 00/00/00 both Mr …….. and ourselves were informed that although the deductions from his benefit would now stop the amount already deducted would not be repaid to him. We were provided with a copy of Departmental guidance on this matter to the effect that benefit can only be legally payable if authorized by a valid entitlement decision and the fact that the overpayment is later found to be non-recoverable does not provide the Secretary of State with a valid decision authorizing repayment to the claimant.

In our view this is based on a complete misunderstanding of the legal position. A valid entitlement decision is only required on a claim for benefit. This was done when benefit was first awarded. A subsequent superseding decision under section 10 of the Social Security Act 1998 based on a later change of circumstance does not invalidate the original awarding decision.

A further overpayment recovery decision under section 71 of the Social Security Administration Act 1992 does also not invalidate the original award decision. However, a subsequent decision of a tribunal renders the recovery decision of no legal effect and any recovery of benefit made under it is unlawful unless and until the tribunal’s decision is overturned by a social security commissioner or a court.

To state that a new valid entitlement decision is required before the Secretary of State can refund the recovered overpayment is to confuse administration with adjudication. A decision of a tribunal that an overpayment is not recoverable is just that and the executive must implement it, and implement it in full. The executive is not free to modify it or disregard it. Executive administration is subject to legal adjudication and not the other way around.

For the executive to blatantly disregard a decision of the judiciary is not only unlawful but also unconstitutional. It is unlawful in that a judicial body has ruled that a decision of the executive (the overpayment recovery decision) is of no legal effect. It is unconstitutional in that it places the executive above the judiciary in that the executive has placed itself above the law, by deciding that it can pick and choose which of the judiciary’s decisions to follow and which to ignore. This undermines the fundamental checks and balances at the heart of our constitution.

The refusal to implement in full the decision of the tribunal also deprives our client of the right to a fair hearing at common law and under article 6 of the Human Rights Act 1998. Imagine a situation where the full amount of an overpayment was recovered before a tribunal was able to sit and the Department had no intention of repaying the claimant. The tribunal would have had its judicial teeth removed in advance as no matter what the tribunal’s decision was it would not and could not assist the claimant.

In these circumstances, although the claimant would have access to a hearing, the real outcome, as opposed to the judicial outcome, is only going to go one way so the hearing becomes an irrelevancy. This also constitutes a breach of natural justice as justice must not only be done but also seen to be done. The impartial reasonably minded observer, while not impugning the independence of the tribunal might view the entirety of the situation as farcical.

Finally to withhold the money may constitute a breach of article 1, protocol 1 of the Human Rights Act 1998, which states: -

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”.

We submit that it is not in the public interest for the executive to be able to disregard a lawful decision of the judiciary to deprive a person of his property in this way. The machinery of justice already provides an appropriate remedy if the executive is dissatisfied with a decision of a tribunal and that is to apply for leave to appeal on a point of law to a social security commissioner. This it has chosen not to do. It, therefore, must not be allowed to go behind the back of the tribunal and render its decision of no effect. This attacks at the heart of our constitutional democracy.

We give notice, therefore, that unless the outstanding sum is repaid to our client within 14 days then he will have no option but to instigate proceedings against you in the County Court.

We thank you for your time in this matter and if you require any further information please do not hesitate to contact me".

Good letter- I'll use that next time I have a client in that position. It's still bugging me, though. I think it was a JR decision but I can't remember for sure.

i really don't see that they have any argument for retaining what they see as repayments of an overpayment but which is, more to the point, an unlawful underpayment of his benefit entitlement.

there is something unsatisfactory about these types of replies, which resolve the case 'on this occasion' but don't concede any principles - you have a 'result' for your client, but what about the next case, and the person who doesn't even make a case of it...?

anyway, there is something very whiffy going on with overpayment recovery...Tony Bowman at least obtained an response from Debt Recovery in a form of intelligible words which is a refreshing change -
"As you have correctly stated the overpayment is only recoverable under common law as this particular overpayment arose though official error. In such cases the DWP request repayment but do not enforce it. The point you have raised regarding the threat of court action has been hightlighted in previous complaints and the wording of such is currently under investigation at our policy section, if they agree re-wording of the letter will commence."

see thread -
http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=108&topic_id=2660&mesg_id=2660&page=

i've been following the progress of the treasury committee on tax credit administration, in particular the right of appeal, which has brought in some "bemusing" claims regarding DWP policy and law on recovery - scroll down to Q13 and 14 and the gov't response - on this link for a treat of weasel words slicker than an oil can.-
http://www.parliament.the-stationery-office.co.uk/pa/cm200607/cmselect/cmtreasy/49/04903.htm

this gets picked up again - see Q136 et seq -

http://www.publications.parliament.uk/pa/cm200607/cmselect/cmtreasy/382/7031408.htm

and right at the bottom of the page, Dawn Primarolo speaks -
*********************************************************************
Dawn Primarolo: The information that I have been given, and I understand this was an exchange between the Committee and Paul Gray in a written reply, is that DWP's policy is always to seek recovery where it is reasonable to expect the claimant to have been aware that they were being overpaid.
*********************************************************************
This suggests that it might be more difficult for Tony to obtain (for everybody) the revision of the wording on the threatening 'try -on' letters to bring them up to standards of decency expected of a you know what - i hope i'm wrong.

seems to me that we have policies within policies, and even policies conflicting with the overall policies, and my theory is this is a severely adverse effect of benefit administration moving further away from from the social security law, once its core, to a process driven miasma. it should not be this difficult to communicate with the DWP, and advisers and claimants ought to be able to resolve matters without having to write to departmental solicitors, or take JR action, and that seems to be the way things are moving, as the legal knowledge base in the DWP is shrinking...

The DWP's policy on recovery of official errors should rightly be shaped by constitutionally sound consideration and understanding of the legislative position and its implications, not the wording on a draft letter composed under who knows what circumstances with on eye on annual targets. The DWP library ought to have copies of old draft letters, which might help them to track the changes, if they are in so much difficulty in working out what their policy actually is.

In my quarter of a century with the DSS, i can recall a letter along the lines of "you do not have to repay this overpayment, because it was caused by our error". I recall that there was a draft letter when an overpayment was determined irrecoverable, which asked for repayment, in slightly weaselly words, but nowhere in the same league as the current one, (those were often issued to the bin (naughty!)when it was a pensioner, because they tended to fall for it - oops!) and it was always made clear on enquiry that there was no legal requirement to repay, no badgering for agreements etc.

1964 - there was a problem with reg. 16 (3) of Payments on account etc - recovery from arrears of benefit, but R(DLA) 2/07 has beaten that off. not sure if that was what you were thinking off...?

Update.

The Department have refunded approximately £900 but for some unexplained reason are refusing to refund a further £400. The DWP's solicitors office is still looking into this for us.

Here's one to top it all.You may have seen the HooperV SoS decision from may which established he didn't have to repay ICB O/P.This was my case. We are now in process of making the DWP debt recovery section stop recovering the same ICB the courts deemed not recoverable. When I spoke to the team in Nuneaton the last thing they had on record was the Commissioners decision we appealed (From April 2006).Despite the national memo (revising the recover process in such cases) issued by the DWP as a result of the Hooper decision , one of their main recovery offices knew nothing about it and we had to send them a copy of the court decision otherwise they wouldn't stop recovery. Once it is sorted we will be revisiting the parliamentary ombudsman, for the third time in this case.
Highway Robbery or what.

And finally

With the help of the DWP solicitors office the debt recovery have finaly agreed to repay in full. I was sent a copy of one of their e-mails - pure administrative gobbledygook. Requested clarification and finally got explaination in proper english.

It seems the computers really are saying no until real people step in and overide the systems, which just takes forever and a day. We can persevere with this because this is what we do and because we know how to but your average punter on his/her own would have been ground down long ago. Absolute bloody disgrace.