UC overpayment - always recoverable from both members of a separated couple?

Hello

I have a client who has split from his wife and now lives in his own home with his adult son who he claims Carers Allowance for as well as UC for himself.

Client previously had a joint UC claim with wife.  After they separated, his wife was awarded a back payment from ESA for money that was due to her. Sorry I don’t know how much exactly.

My client is now having £55.31 taken off his UC per month as an overpayment.  He is understandably unhappy about this, as the entire ESA payment has gone to his wife and he doesn’t see a penny of that.

I know that under the UC Regs,  both members of a couple who separate, are liable to pay half each of any overpayment.  Are there any exceptions to this?  Any scope to request an MR in this case?

Any input appreciated!

Hi,

1. As a matter of law, then the full amount of a UC overpayment is recoverable from either member of the couple to whom it was paid.

2. That is because of s.71ZB Social Security Administration Act 1992 which states in relevant part:

Recovery of overpayments of certain benefits
71ZB.-(1)The Secretary of State may recover any amount of the following paid in excess of entitlement—
(a)universal credit,
[...]
(2)An amount recoverable under this section is recoverable from—
(a)the person to whom it was paid, or
(b)such other person (in addition to or instead of the person to whom it was paid) as may be prescribed.
[...]
(6)In the case of a benefit referred to in subsection (1) which is awarded to persons jointly, an amount paid to one of those persons may for the purposes of this section be regarded as paid to the other.

3. Separately from this the SSWP guidance in the Benefit Overpayment Recovery Guide on this point is as follows:

Changes to persons from whom recovery is sought
2.23. Where an overpayment is recoverable from more than one person then certain changes in those persons’ circumstances or the relationship between them may alter the action taken to recover the debt:

[....]

a couple separate (applies to Universal Credit debt only) - when a couple separate and they have an overpayment for which they are jointly and severally liable, the debt is apportioned 50/50 on separation. Any single penny remaining after apportionment is written off. Once this apportionment has been done we will not reverse the split liability decision. Any debt for which only one member of a couple is liable will follow that person on separation

4. However, just because in law the whole of the overpayment can be recovered from your client and the guidance is in all cases to apportion it 50/50 that does not mean the SSWP can simply go ahead and do so. The SSWP has a discretion and cannot completely tie his hands and slavishly follow policy where the circumstances are such that this is clearly unfair- the SSWP needs to keep an open mind and depart from his policy in appropriate cases.

5. I think if your client sent a letter explaining-

a) that the overpayment came into existence due to recalculation of UC when cESA was paid late to client’s ex partner for period when they were a couple and that the cESA was paid in full to the ex partner after they had separated

b) that in those circumstances, the ex partner received the full benefit of the overpaid amount and your client did not benefit at all.

c) given that it would make sense to recover the whole amount from the person who has received the full benefit of the overpaid amount and not from the person who received no benefit from it and the SSWP should not follow the guidance in the BORG

then the SSWP would need to take that into account in deciding whether he should disapply the policy. If the SSWP refused to consider whether to do this then the threat of judicial review on the grounds he had fettered his discretion could be considered. Alternatively if he does take it into account but decides not to then perhaps that could be said to be irrational.

[edited to fix BORG link]

Martin

Thanks so much for your detailed reply this is super helpful :)