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over payment recovery, discretion to recover
does the dwp have discretion about recovery of overpaid income support, my client was found no guilty t at court for fraud but lost an income support appeal for the same issue, do the dwp have discretion not to recover the money
Yes they do, but they will generally only do so in exceptional circumstances. See Chapter 8 of this guide:
elliot, manby thanks, I just spoke to debt recovery and they will change case from fraud to non fraud, which is a start, as the crown court found no case to answer non fraud seems fair
I have had repeated success with this when all else has failed over the years but boy do DWP et al make it hard work.
There are multiple problems with the guidance which, for example, refers to health and welfare but then later splits that into damage to health and financial hardship. Add in the complication of the abyss which is Debt Management/Recovery being involved and their uncanny ability to repeatedly fetter their own discretion and you have a battle on your hands. I’ve sent financial statements in showing that the client has no disposable income and the latter have challenged elements of the expenditure… even when taking them out would still leave the client with no disposable income!
They also refer to JR. However, if the local SoS declines to exercise their discretion in your clients favour it is still open to go to the actual SoS. It’s an interesting tactic as the latter does sometimes find grounds to not recover and other times makes such a hash of the basics that JR is easy and they’ll back down with a formal complaint and the inference of a letter before action.
Interestingly it is possible to get results on something other than health or financial hardship.
However, at the end of the day, you need something solid to go on which goes beyond “client doesn’t want to pay it back”.
I’ve had success with things like:
- client has non-terminal cancer but is elderly and impaired in other ways (breathing as I recall) and struggled to travel to see relatives so they came to see her and she cooked for them all at additional expense. Taking away her small disposable income and effectively rendering her housebound and alone was not appropriate.
- case had involved so much maladministration we’d had 3 separate awards of compensation on the same claim. DWP had shown so much incompetence they would be better served by a simple write off than potentially risking a 4th complaint 😊
- interim payments of dependents addition for a person whom DWP knew had gone self-employed and made a small profit in her first year. Made bigger profits in years 2 and 3 and asked them to not pay the IPs. They still did. Each time they decided there was recoverability. Challenged all 3. Husband completely messed up evidence at the appeals so we lost all 3. Persuaded them to write off all 3 as the evidence was overwhelming they maladministrated in the first place.
thanks MIke, yes I waived the JR stick at them but as she lost an apepal by not attending its a bit dodgy, going to try to get her mP to put some pressure on