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Recovery of overpayments/official error
Does anyone have the definitive answer on the proposed changes to make all overpayments recoverable even in the case of official error? i.e. when and if it is happening.
I thought it was coming in at the same time as Mandatory recon but can’t find any details.
The provisions are in section 105 of the Welfare Reform Act 2012 which inserts a new section into s71 of the Administration Act and was brought into force on 29/4/13. It does not apply to all benefits.
section 71ZB inserted after section 71 rather than replacing it. I thought the references in 71ZB(1) to JSA and ESA were to the new style versions of those benefits only, ie the contributory versions introduced in the UC pilot areas. I’m still playing catch up with welfare reform so happy to accept I’m wrong.
I had not realised it applied to both types of JSA/ESA until today. I have just seen a lady with a clear official error overpayment of IR ESA. Conversion from IB decision dated 5/4/2013 although actual payment of IR ESA did not commence until 31/5/2013.
What do people think - will she be caught by the new rules with a claim date of 31/5/2013 or is her claim date 5/4/2013?
I’m getting confused - and I’m supposed to be writing something about this!!!
I had understood that it was UC and ‘new-style’ ESA and JSA only.
These are defined in Advice for Decision Makers Chapter M1 as ESA or JSA ‘as defined in the pathfinder area from 29.4.13’ and the ADM on overpayments (Chapter D1) says it applies only to UC and new-style ESA and JSA. It then says ‘contribution based only’. As I s’pose there wouldn’t be IRESA or IBJSA in UC-land.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/260383/admd1.pdf
I’m going to re-read everything now, but any other thoughts would be helpful!
Tom H - section 71ZB inserted after section 71 rather than replacing it. I thought the references in 71ZB(1) to JSA and ESA were to the new style versions of those benefits only, ie the contributory versions introduced in the UC pilot areas. I’m still playing catch up with welfare reform so happy to accept I’m wrong.
I think Tom H has it right. The Overpayments and Recoveries Regs 2013 No 384 add detail to what’s in the WRA and say:
“employment and support allowance” means an allowance under Part 1 of the 2007 Act as
amended by the provisions of Schedule 3, and Part 1 of Schedule 14, to the 2012 Act that
remove references to an income-related allowance;
“jobseeker’s allowance” means an allowance under the 1995 Act as amended by the
provisions of Part 1 of Schedule 14 to the 2012 Act that remove references to an income-based allowance;
So it reads to me that it’s ESA(C) and JSA(C) in the Pathfinder area only.
The 71ZB does sit at odds with the pre-existing s71. It would make sense that this is the case. Looking at the removal of reference to income related ESA/JSA in part 1 of schedule 14 of WRA 2012, I think I agree too! Particularly as Sch 14 refers specifically to “Abolition of benefits superseded by UC”
Have passed this onto a colleague for fresh eyes on it as well for another opinion.
I think that’s right. IB/JSA and IR/ESA are excluded from the ambit of s71ZB. That’s because they are to be subsumed into UC but as the roll out of UC has been delayed those benefits still exist in their own right and are subject to the old s71 provisions. If the coming into force of s71ZB and the national roll out of UC were co-terminous this wouldn’t be an issue.
Slightly to my suprise it didn’t seem to cover PIP either -
‘DMG Chapter 09 contains guidance on overpayment decision making for other benefits, including PIP, not listed above’ says the Advice for Decision Makers
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/260383/admd1.pdf
The answer to this is in Welfare Reform Act 2012 (Commencement No. 8 and Savings and Transitional Provisions) Order 2013 (SI 2013 No. 358).
When that instrument was initially made it seemed to mean that all overpayments of JSA and ESA would be recoverable (old and new style) if claim made on or after 29/4/2012- the DWP assured us this was not intended.
That was why we put in the handbook (page 1258) that “at the time of writing the governments intention appears to be that only overpayments of cJSA and cESA ....” (we weren’t clear at this stage whether they meant by this new style).
Then they amended the above SI to correct their mistake (SI 2013 No. 983- Article 23). You can see the current version of the SI here (look at Article 6): http://www.dwp.gov.uk/docs/a14-3201.pdf
This is as follows:
Appointed day and saving for provisions relating to overpayments
5.—[....]
(2) 29th April 2013 is the day appointed for the coming into force of the provisions
of the 2012 Act mentioned in paragraphs (3) to (5) (which also relate to the recovery of
benefit payments).(3) In relation to section 105 (recovery of benefit payments)–
(a) subject to paragraph (3A) subsection (1) of that section, in so far as it is
not already in force; except in so far as it inserts section 71ZB(1)(d) of the
1992 Act and the word “and” immediately preceding it;[....]
Right so the above bit switched on 71ZB allowing automatic recovery of JSA, ESA and UC.
But the next bit is crucial
(3A) In so far as section 105(1) of the 2012 Act inserts section 71ZB(1)(b) and (c)
of the 1992 Act, those paragraphs come into force on 29th April 2013 only in so far as
they relate respectively to a new style JSA award and a new style ESA award.
What that bit does is allows automatic recovery of ESA and JSA only if they are “new style” (see also the definition of “new style” in para (7) which I don’t reproduce).
Then there is this bit:
(4) In relation to Part 11 of Schedule 14, the repeals of–
(a) section 71(10A) and (10B) of the 1992 Act; and
(b) subject to paragraph (6), section 71(11)(aa) and (ac) of the 1992 Act.
What that bit does is deletes the stuff in section 71 about recovery of JSA and ESA under the familiar “failure to disclose” rules- so that this is no longer grounds for recovery of them. However they made sure that “old style” ESA and JSA continue to be recoverable under these rules with this:
(6) Despite paragraph (4)(b), the benefits referred to in section 71(11)(aa) and (ac)
of the 1992 Act remain benefits to which section 71 of the 1992 Act apply to the extent
that they relate respectively to an old style JSA award and an old style ESA award.
Will make it clear in the handbook for next year with a simple “new style ESA and JSA recoverable automatically” type approach.
[Note- I am not sure that sec 71(10A) and (10B) are actually preserved by Article 5(6) which only applies to repeals effected by para (4)(b) and so might be some issues for people with bankruptcy which I don’t fully understand yet but as the DWP will probably go with what their marginal note in the blue volumes SSAA 1992 say (eg that these subsections of section 71 are preserved for some purposes) I am not too worried.
[ Edited: 16 Jan 2014 at 09:44 am by Martin Williams ]Thanks for this explanation. One thing that still puzzles me though, is what the ‘new style’ benefits are exactly. My instinct says Universal Credit versions, but the definitions in para 7 doesn’t seem to say that at all.