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Are over payments always recoverable
Please can someone confirm once and for all that any benefit over payment is always recoverable even when the reason for the over payment is an official error!
Rarely recoverable if challenged nowadays for several reasons:
1) Always worth appealing as recovery ceases. Doesn’t have to but most LAs will. Also worth doing as I’ve yet to come across a set of appeal papers which didn’t throw up an interesting question or angle about who might be responsible. There’s a lot more speculative recovery nowadays (trawling back etc.) and so, often, the act of appealing throws up the fact that a LA has quite literally no evidence at all.
2) A lot of LAs no longer have anyone available to attend an appeal hearing. Rather than flag up repeated losses in their absence it’s often easier to concede. As the definition of vulnerability expands so it becomes easier to argue that, even when the overpayment is recoverable, the discretion to not recover should be used. Generally, it’s kicking at an open door.
3) The caselaw on whether a claimant contributed to an overpayment or ought to have known they were being overpaid helps more cases than it hinders.
I would say that about 80 to 90% of so-called recoverable overpayments are no such thing. The issue is often persuading a WRO to run with in the first place. There is a tendency for some people to go “Well you did fail to disclose so you ought to pay it back”. I’d like to think more experienced advisers would shy away from such a judgemental and limiting approach.