UC and ESA - overpayments

So frustrating isn’t it Andrew - the UC and legacy systems ‘don’t talk to each other’ as we are frequently told by DWP!

Happy New Year…

From our sources, it seems the higher uppers are well aware of this scenario and they say leave with us, we will sort something, but dunno when, until then errrrrrrrrrrrr whatever. Carry on regardless!

UC haven’t really answered the claimant’s question, have they?
The clamant is asking - why is there is no process to offset any ESA arrears due from UC already paid?

‘UC haven’t really answered the claimant’s question, have they?
The clamant is asking - why is there is no process to offset any ESA arrears due from UC already paid?’

Precisely so. I will press the complaint, if the claimant is happy to do so.

I wish the the W&P’s committee and PAC would cross examine the relevant ministers and civil servants on this question if only for some airing in public.

Because it is a systemic issue, i.e. an expedient the Dept proceeds with as part of the price for UC’s expansion and keeping costs down i.e. avoidable systemic overpayments caused by tacit built in official error, for administrative convenience / expediency for UC i.e. political expediency.

The claimant wants the complaint stepped up.

DWP will make the same mistakes until the crack of doom while the claimant suffers all consequences and the department none.

DWP spybots: got that?

Claimant has now been awarded LCWRA after a long haul. This will lead to ESA being Support Group, with arrears due on both.

Request made to issue UC arrears only once all ESA has been taken into account as income, to avoid a repeat of the above scenario.

I wonder what will happen?

Reply received.

DWP state they are prevented by ‘current legislation’ from carrying out an abatement calculation and offsetting the ESA arrears against UC.

Claimant will receive LCWRA arrears and, separately, SG arrears, and the latter will cause an overpayment of the former. Luckily we can see it coming and the claimant is well supported. 

Thinking of letting claimant’s MP do the work from here on in, i.e. ‘Which legislation? Change it!’

Update - DWP clarify that they did not mean that legislation forbids an abatement calculation, but that no legal mechanism exists to allow one!

Gad, gad and thrice gad…..

See extract below from a Regional customer services letter to our MP regarding underpayment of ESA from 2017 to present roughly £30,000 ish. The implication appears to be to resolve the ESA impasse, our client needs to be essentially overpaid UC to the amount of £29,000+ i.e. incur an avoidable overpayment of £29,000 of UC. That would have to paid back over decades.

‘To avoid duplication of benefit payments, the amount of any new style ESA
paid, reduces any UC payment by the same amount. The ESA
underpayment will therefore generate a similar amount of UC overpayment.
Our latest guidance is that we cannot offset an ESA arrears payment, to
avoid a UC overpayment’.

Throughout we have written various mantra’s like the following. Any arrears of NS ESA should be offset against UC already paid by the Department of Work & Pensions on the following legislative basis - Reg 11 the Social Security (Overpayments and Recovery) Regulations 2013. Failure to do so would amount to an avoidable overpayment i.e. official error / maladministration/ loss to the exchequer.

Guidance link and extract below. contradicts the DWP argument further.

https://www.gov.uk/government/publications/benefit-overpayment-recovery-staff-guide/benefit-overpayment-recovery-guide#chapter-3

‘Decision making – overpayment
3.7 It is DWP policy to record any recoverable overpayment decision. Some overpayment decisions can be complex and contentious therefore recording the decision and the reasoning behind it is necessary.

3.8 The overpayment decision is made by a Decision Maker. The Decision Maker will consider all the facts and evidence before applying any appropriate Social Security legislation and case law to reach a decision. An overpayment decision will normally include the following information:

whether there has been an overpayment
who or what caused it
the period of the overpayment
the amount of the overpayment
evidence of how the overpayment has been calculated
whether some or all of the overpayment can be offset, and if so how offsets have been applied
whether the overpayment is recoverable and
if so, who the overpayment is recoverable from and the basis for that determination
a decision on whether, and on whom, to apply a Civil Penalty
3.9 The claimant has the right of appeal against the amount of the overpayment (and/or a Civil Penalty), and its recoverability. Chapter 4 gives more information on appeals and disputes. For Universal Credit, as all overpayments are recoverable under legislation, only the amount of the overpayment is appealable’.

https://data.parliament.uk/DepositedPapers/Files/DEP2022-0860/101._New_Style_ESA_and_UC_dual_claims_V2.0.pdf

I’m now noticing this arising with payments of CA too - 3 months’ worth of CA paid, the two departments don’t talk to one another until a UC overpayment is raised (in at least one case without carer element being calculated) and recovered at a high rate. Claimants are at the very least caused considerable confusion, sometimes hardship.

I’ve sent the ESA case referred to above to the claimant’s MP, who by happy chance is a Select Committee member.

It all seems to me to indicate a system run for the administrative convenience of the DWP, who can leave the claimant to do the ‘abatement’ the hard way, with the claimant’s needs - vulnerable people especially -  left on the gatepost.

Andrew Dutton - 07 February 2023 10:59 AM

I’m now noticing this arising with payments of CA too - 3 months’ worth of CA paid, the two departments don’t talk to one another until a UC overpayment is raised (in at least one case without carer element being calculated) and recovered at a high rate. Claimants are at the very least caused considerable confusion, sometimes hardship.

I’ve sent the ESA case referred to above to the claimant’s MP, who by happy chance is a Select Committee member.

It all seems to me to indicate a system run for the administrative convenience of the DWP, who can lave the claimant to do the ‘abatement’ the hard way, with the claimant’s needs - vulnerable people especially -  left on the gatepost.

‘I’ve sent the ESA case referred to above to the claimant’s MP, who by happy chance is a Select Committee member’.

Oh good!

Andyp5 Citizens Advice Bridport & District - 07 February 2023 10:46 AM

3.9 The claimant has the right of appeal against the amount of the overpayment (and/or a Civil Penalty), and its recoverability. Chapter 4 gives more information on appeals and disputes. For Universal Credit, as all overpayments are recoverable under legislation, only the amount of the overpayment is appealable’.

https://data.parliament.uk/DepositedPapers/Files/DEP2022-0860/101._New_Style_ESA_and_UC_dual_claims_V2.0.pdf

What is the way to dispute recoverability of a UC overpayment if appealing is not valid? How does one get UC to waive it due to exceptional circumstances?

HI Jacky - there is guidance in Chapter 8 of the benefit overpayment recovery guide which you might find helpful - https://www.gov.uk/government/publications/benefit-overpayment-recovery-staff-guide/benefit-overpayment-recovery-guide#chapter-8

Thanks Daphne, will use this.

Jacky Everard - 20 February 2023 03:56 PM

Andyp5 Citizens Advice Bridport & District - 07 February 2023 10:46 AM

3.9 The claimant has the right of appeal against the amount of the overpayment (and/or a Civil Penalty), and its recoverability. Chapter 4 gives more information on appeals and disputes. For Universal Credit, as all overpayments are recoverable under legislation, only the amount of the overpayment is appealable’.

https://data.parliament.uk/DepositedPapers/Files/DEP2022-0860/101._New_Style_ESA_and_UC_dual_claims_V2.0.pdf

What is the way to dispute recoverability of a UC overpayment if appealing is not valid? How does one get UC to waive it due to exceptional circumstances?

‘How does one get UC to waive it due to exceptional circumstances’?

From experience, threat of JR or in a recent case actual JR or/and MP. The intransigence, even with blatant official error is actually scary. Similarly, arguably refusals to offset that suggests administrative dysfunction is firmly locked into the system.

Erm, but don’t let it put you off, we have to keep on keeping on.

As I understand it via communications from CPAG Scotland - backdated payments of widowed parent’s allowance (and BSP) will be offset against any means-tested payments received during the relevant retrospective period (no mention of this on gov.uk or other communications I have seen).

Where it’s a legacy benefit, it will reduce the backpayment made, but if the claimant was on UC then it will create an overpayment due to the failure to offset!! (Obviously not an issue for BSP as disregarded for purposes of UC)

I am emailing the DWP as we speak…

Edit - see https://www.rightsnet.org.uk/forums/viewthread/17529/P15/#90252 for more explanation of this

Another day, another complaint - UC overpayment caused by CA.

DWP’s reply:

‘On your message from 01/02/2023 you ask about the process by which Carer’s Allowance is taken into account against Universal Credit. Under Universal Credit regulations Carer’s Allowance is taken fully into account and our current processes do not include the ability to complete an abatement when Carer’s Allowance is awarded for a period for which Universal Credit has already been paid which means that retrospective awards for Carer’s Allowance currently result in overpayments being raised against Universal Credit.’

Why have they left this gaping hole????

Late to the party (whats new?)

I have been running a complaint regarding the lack of offsetting arrears of ESA to take the UC already paid into account.

The cl’s local MP has also taken up the case and in the final reply the DWP has conceded that there is no legal reason why they could not offset but that they were aware of the problem but so far it had proved ‘unscalable’ (whatever that means)

The whole thing has gone to ICE with a comment that DWP have conceded that offsetting is lawful, that it was routinely done for many years with other benefits and that and that not having a procedure to do something is not necessarily the equivalent of having an explicit policy not to do it.

lets see what happens

I find it very strange that the DWP is so nonchalant about this.

Whilst the individual claimants may well find it distressing to be told that they have to pay back the money that they have just received, what is happening on a larger scale is that the DWP are paying millions of pounds to claimants in circumstances where it is fully aware that this will immediately create an equivalent overpayment. Doubtless, in most cases, that money will take years to recover or will never be recovered. That really seems like something that the DWP ought to want to put a stop to.

Given how fraud and error seems to be the big theme of the moment, I wonder if your friendly MP could ask the DWP just how much has been paid out unnecessarily as a result of the failure to offset.

Also late to the party.

Important to remember that the mention many moons ago that UC IT doesn’t talk to legacy IT was not one which was going to get fixed further down the line. The intent was always that the two would never talk. If only there had been someone they could have talked to who could have imagined scenarios in which that simply wasn’t practical.

We now find ourselves in a situation which is a throw back to the early heady days of Tax Credits where, once we’d ceased to be giddy about the money Gordon was throwing into the pot, the penny suddenly dropped that overpayments and recoverability were baked in system components. In systems theory this is straightforward failure demand. The creation of pointless work. One is tempted to use the phrase “non-job” but my fear is that the world will then commence imploding in on itself.

Elliot Kent - 15 December 2023 02:10 PM

I find it very strange that the DWP is so nonchalant about this.

Whilst the individual claimants may well find it distressing to be told that they have to pay back the money that they have just received, what is happening on a larger scale is that the DWP are paying millions of pounds to claimants in circumstances where it is fully aware that this will immediately create an equivalent overpayment. Doubtless, in most cases, that money will take years to recover or will never be recovered. That really seems like something that the DWP ought to want to put a stop to.

Given how fraud and error seems to be the big theme of the moment, I wonder if your friendly MP could ask the DWP just how much has been paid out unnecessarily as a result of the failure to offset.

It seems that they think its a price worth paying for UC operational reasons i.e. no digital solution. But nevertheless to make UC work for expedient and financial reasons. Its automation regardless of costs for policy imperatives.

Offical error is deemed to be 0.6% 250m and claimant error 0.6% error 280m (are the dept with the latter being cavalier with their definition?). https://www.gov.uk/government/statistics/fraud-and-error-in-the-benefit-system-financial-year-2022-to-2023-estimates/fraud-and-error-in-the-benefit-system-financial-year-ending-fye-2023#universal-credit-overpayments-and-underpayments.

I’m guessing Pete’s MP’s letter is similar to the one our MP received and other orgs.

The letter was very similar, especially the phrase about it being ‘unscalable’.  I have made the point to ICE that this is simply an ‘administrative convenience’ for DWP ( shamelessly borrowing from other posts in this thread !) and intrinsically unfair on claimants. If they can’t get the IT to do it then perhaps they should revert to older methods?

Pete at CAB - 18 December 2023 09:29 AM

The letter was very similar, especially the phrase about it being ‘unscalable’.  I have made the point to ICE that this is simply an ‘administrative convenience’ for DWP ( shamelessly borrowing from other posts in this thread !) and intrinsically unfair on claimants. If they can’t get the IT to do it then perhaps they should revert to older methods?

May be humans?

  Just an update on my complaint to ICE- thanks to the MP the cl. has had an apology from DWP, a token payment for ‘distress’ and a huge reduction in the deductions from their monthly UC.

The ICE have been very good, although the cl has had a fairly good outcome the ICE have not left it there and they have asked the DWP to give explicit details of the offsetting process. Despite what we have understood the DWP have said to the ICE that there is a process but in my cl’s case it was not followed in good time.  We expect DWP to respond to the ICE in the next two or three weeks.

My own feeling is that knowing there is actually a process could be of help, we might even ask a Tribunal to direct that (for example) ESA must carry out offsetting under their procedure before paying the successful appellant

Update - ICE have had a reply fairly similar to the previous ones in that the proces was found to be ‘unscalable’ ( there is that word again!) and that DWP are working towards a resolution - given that this is what has been said a number of times before it does not seem a high priority?

I was wondering if this might in fact be within the jurisdiction of a Tribunal?

It is usually held that they are able to make any decision that a decision maker can make and they can often ask for a recalculation of something like an overpayment.

This being the case could they direct that an arrears payment of ESA after an appeal should only be made once any offsetting against other benefits is completed?