Claimant claimed IS and IB at the same time. Was initially paid IS but DWP later awarded IB. DWP failed to offset the IS that had already been paid from the IB entitlement. So an IS overpayment was created.

DWP now seeking to recover IS under s.74.
s74(4)'where an amount could have been recovered by abatement under s74(2)... but has not been so recovered, the sec of state MAY recover it otherwise than by way of abatement'

s74(2) also implies discretion by stating MAY abate.

Paul Stagg overpayments book (1996) p.214 says 'the exercise of discretion implicit in s.74(2)will be subject to appeal to a tribunal. It is further suggested that the tribunal must consider the whole decision to exercise the discretion to enforce recovery.'

Is this still the case or has there been any adverse case law?

There's a Comms case CIS/0155/2001 in which the commissioner held that the only way to challenge the issue of discretion in recovery under s 74 was via judicial review, and it was outside the jurisdiction of the appeals system. He left unanswered the issue of whether this had in any way been changed by the enactment of the 1998 Social Security Act; but there seems to be no more recent case law on the same point.

Thanks Ariadne2.