× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Universal credit administration  →  Thread

UC overpayment not challengeable

Sally63
forum member

Generalist Adviser, Southwark Citizens Advice Bureau

Send message

Total Posts: 177

Joined: 21 January 2016

Client claiming UC, various complications over rent but not significant to this query.

She was working as self employed for around 16 hpw. She had to phone in with her hours worked and pay every month on specific date. She could not file hours and pay online.  She did this.

Nine months later she was told she was overpaid £1200. She asked for an MR (via her journal) and was told that although the overpayment was due to the failure of the DWP to take her hours worked properly into account (no dispute that she properly filed them) the overpayment was still recoverable. An MRN saying this very clearly was attached to her journal.

The Welbens h/bk (pg 1225) says overpayments of UC are always recoverable regardless of the cause (usual stuff about discretion not to recover).

The only challenge seems to be to their claim that client has been overpaid ie that her payments have been wrongly worked out previously and putting them right creates the overpayment.

The DWP should have changed each decision which they now consider to be wrong before attempting to recover any overpayment (pg 1231). Such a decision is made by a DM who makes a new decision on what the benefit should have been (pg 1232). There might have to be a series of such decisions if a lot of them were wrong (pg 1232). Until they are all changed there can be no recovery says the good book.

So the only way forward for this client is to challenge the failure to revise each decision to award her benefit which is now said to be wrong.

Have I got this right?

Jon (CANY)
forum member

Welfare benefits - Craven CAB, North Yorkshire

Send message

Total Posts: 1362

Joined: 16 June 2010

So the only way forward for this client is to challenge the failure to revise each decision to award her benefit which is now said to be wrong.

If she has an MRN in ref to the full period then go straight to appeal, but there’s only any point if there’s a chance the o/p was wrongly calculated. Or is this just a time-buying exercise? If so I suspect it will be difficult to get UC to take any notice. It seems that recovery just kicks in, regardless of where they are in the formal decision-making process.
(In particular I’m thinking of a recent UC case we saw where o/p recovery went on for several months, before the client queried it and eventually received a decision to explain the o/p and give the right to ask for MR. By this point the o/p was virtually all recovered.)

As I recall, the ref in the handbook to non-recovery of a UC o/p where DWP is at fault is to an old ministerial announcement, I am unaware of any actual UC policy on that e.g. along the lines of tax credit’s “who met their responsibiilties” test. Still, no harm in asking UC to write it off, perhaps with MP back-up.

As I’m sure you know, other options for a substantial overpayment include asking for recovery rate to be reduced on hardship grounds, and debt options advice.

Sally63
forum member

Generalist Adviser, Southwark Citizens Advice Bureau

Send message

Total Posts: 177

Joined: 21 January 2016

We helped her appeal because she had an MRN and the book, having said o/p are always recoverable, says that’s what to do.

The underlying point is that we do not know how the overpayment was worked out because we have only the amounts she was paid, the earnings she has declared (by phone) and the belated outcome. There’s no way to know what the underlying calculations are based on and therefore whether they are right or not.

I take your point that they may well be right but at this point we do not know.

The book actually says that the overpayment cannot be recovered until the decisions have been revised.

The choice seemed to be to accept that it was recoverable although we did not know whether it was right or not—or to appeal. So we appealed.

Where is “the ref in the handbook to non-recovery of a UC o/p where DWP is at fault is to an old ministerial announcement,”?

Thank you for helping me think it through.

[ Edited: 15 Jul 2017 at 05:29 pm by Sally63 ]
Jon (CANY)
forum member

Welfare benefits - Craven CAB, North Yorkshire

Send message

Total Posts: 1362

Joined: 16 June 2010

Sally63 - 15 July 2017 05:26 PM

Where is “the ref in the handbook to non-recovery of a UC o/p where DWP is at fault is to an old ministerial announcement,”?

Bottom of CPAG p1235, DWP guidance to not recover can be exercised to avoid hardship. The handbook also says you can ask them not to recover if the overpayment if it was caused by a DWP mistake, the footnote is referenced to Hansard 19 May 2011, col 1019. In that debate Chris Grayling made various statements on overpayment recovery, including this:

The practical reality is that we do not have to recover money from people where official error has been made, and we do not intend, in many cases, to recover money where official error has been made. There will be an absolutely clear code of practice that will govern the circumstances in which recovery action will or will not be taken, to ensure consistent, considered decision making.

Can anyone link to this “clear code of practice” that will apply in many cases of official error?

Andrew Dutton
forum member

Welfare rights service - Derbyshire County Council

Send message

Total Posts: 1955

Joined: 12 October 2012

I have picked up this thread because I have a client who has been overpaid as although she reported receipt of student finance, UC didn’t know what to do about it, hesitated for over a month, and have now claimed an overpayment back.

The notification makes no reference to the law used, provides no breakdown of the overpayment, and no information about how the student finance was treated.

A search for the Code of Conduct reveals that it was withdrawn last month
https://www.gov.uk/government/publications/what-happens-if-you-are-overpaid-universal-credit-jobseekers-allowance-or-employment-and-support-allowance

- but to be updated and improved, or just junked?

Arrrrrrrggggg.

Jon (CANY)
forum member

Welfare benefits - Craven CAB, North Yorkshire

Send message

Total Posts: 1362

Joined: 16 June 2010

Even when that COP leaflet was current, it made no reference to non-recovery in cases of official error. It says ‘significant hardship’ is the only possible reason to not pursue a debt. The tax credit COP is much broader.

Mike Hughes
forum member

Senior welfare rights officer - Salford City Council Welfare Rights Service

Send message

Total Posts: 3138

Joined: 17 June 2010

If you can get it to appeal then there is the opportunity to use the age old case law as regards over-payment calculations being sufficient that the appellant is able to understand them. What has been described in both instances falls well short of that. Nice moment also to do an FOI on how many times DWP have written off UC over-payments. Might just be that they have fettered their discretion to the point of, er, not doing so at all. In which case, JR time?

Andrew Dutton
forum member

Welfare rights service - Derbyshire County Council

Send message

Total Posts: 1955

Joined: 12 October 2012

I have asked for a full copy of the decision with proper references to the law and will certainly proceed to appeal anything possible. I recall that COP1 was short on mentions of official error, it will be interesting to see if it is to be replaced, and if so what the replacement says.  I have also quoted Mr Grayling’s words in my letter of MR/complaint.

That’s another interesting thing; the decision letter invites and MR and then advises that there is no right of appeal. It then says you can appeal after an MRN has been issued. Hmmmmm…....

clive
forum member

Newcastle Council Welfare Rights

Send message

Total Posts: 122

Joined: 22 June 2010

Hi Andre
did you get anywhere with this?
Clive

Andrew Dutton
forum member

Welfare rights service - Derbyshire County Council

Send message

Total Posts: 1955

Joined: 12 October 2012

Hello Clive.

In this and all other cases of UC overpayment through DWP error, I have received the same response from DWP (larded with increasing smugness)- that because the law says the overpayment is recoverable, it is DWP policy to recover, and any complaints based on official error/maladministration will not be accepted because they refer to ‘policy’.  They have found a way of saying that DWP error is not a service issue at all.

You can’t go to level 2 complaints, you can’t go to ICE, because DWP will not even accept it as a complaint and ICE will only accept matters that have gone though the complaints system.

There is still no COP, requests for consideration of one have met with stony silence, and, oddly, Mr Grayling’s words seem to mean nothing, almost as if they were never meant to…..

I have consistently made the point that DWP must be answerable for official error and if there is no comeback on them and someone else always pays, how and why will they ever improve?

We need MPs to look at this….oh dear…....

 

clive
forum member

Newcastle Council Welfare Rights

Send message

Total Posts: 122

Joined: 22 June 2010

Thanks
Do you think there’s any chance of JR on grounds of DWP not using its discretion to consider recovery. Soc Sec Admin Act has “MAY” in sections 71ZB and 71ZC If they are doing it so automatically, then discretion is fettered etc which a JR should deal with!  I’m thinking of asking cpag if they are considering this. What do you think?
Clive

Andrew Dutton
forum member

Welfare rights service - Derbyshire County Council

Send message

Total Posts: 1955

Joined: 12 October 2012

I’m in favour of having a go.  Attempts to invoke DWP discretion have also met with stony silence.

I also want to raise the issue with the APPG on UC once Parliament is back.

Mike Hughes
forum member

Senior welfare rights officer - Salford City Council Welfare Rights Service

Send message

Total Posts: 3138

Joined: 17 June 2010

Line used to be discretion full stop and then it morphed into demonstrating hardship. Now it’s… nothing so I would definitely be looking at JR.

Paul_Treloar_AgeUK
forum member

Information and advice resources - Age UK

Send message

Total Posts: 3196

Joined: 7 January 2016

Yes, blanket policies are ripe for challenge, fettering discretion etc. Interestingly, overpayments don’t appear to be amongst the list of PA letter’s in the CPAG JUDICIAL REVIEW PRE-ACTION LETTERS so maybe someone should give them a nudge if you’ve got a suitable client?

Andrew Dutton
forum member

Welfare rights service - Derbyshire County Council

Send message

Total Posts: 1955

Joined: 12 October 2012

I’ve got someone in mind, I will talk to them. Just as an added issue, this person appealed the overpayment decision in spite of the state of the Regs, the Tribunal adjourned the first hearing and issued directions to DWP to suspend deductions and consider other actions - LAST NOVEMBER.

DWP has never responded and never complied.

Elliot Kent
forum member

Shelter

Send message

Total Posts: 3117

Joined: 14 July 2014

Andrew Dutton - 13 November 2019 03:11 PM

I’ve got someone in mind, I will talk to them. Just as an added issue, this person appealed the overpayment decision in spite of the state of the Regs, the Tribunal adjourned the first hearing and issued directions to DWP to suspend deductions and consider other actions - LAST NOVEMBER.

DWP has never responded and never complied.

I had one of these. Six months and no response to the directions so the DTJ barred them from participation in the appeal and decided the case in my client’s favour in default under Rule 8(8).

JoW
forum member

Financial inclusion manager - Wythenshawe Community Housing

Send message

Total Posts: 343

Joined: 7 September 2012

We have cases where we are 99.9% sure someone is being overpaid as DWP aren’t reducing HCE due to bedroom tax (and we have considered all the reasons they might correctly not apply and none apply). We are advising people to put a note on their journal querying this and they still keep paying. These tenants can’t get DHP as LA says no shortfall. If in years to come the DWP realise their error and request the money back the tenant will have lost the opportunity to apply for a DHP.

It goes against any idea of natural justice that the UC clamant should have to repay due to DWP inability to correctly calculate their own benefit even when prompted…

Mike Hughes
forum member

Senior welfare rights officer - Salford City Council Welfare Rights Service

Send message

Total Posts: 3138

Joined: 17 June 2010

It’s okay putting it on the journal but screen shots are going to be critical over time.

clive
forum member

Newcastle Council Welfare Rights

Send message

Total Posts: 122

Joined: 22 June 2010

am in contact with CPAG about a pre action letter. Watch this space (and others!)

Abi Sheridan
forum member

Expert Advice Team (Help to Claim) - Citizens Advice

Send message

Total Posts: 26

Joined: 26 April 2019

JoW - 13 November 2019 04:12 PM

We have cases where we are 99.9% sure someone is being overpaid as DWP aren’t reducing HCE due to bedroom tax (and we have considered all the reasons they might correctly not apply and none apply). We are advising people to put a note on their journal querying this and they still keep paying. These tenants can’t get DHP as LA says no shortfall. If in years to come the DWP realise their error and request the money back the tenant will have lost the opportunity to apply for a DHP.

It goes against any idea of natural justice that the UC clamant should have to repay due to DWP inability to correctly calculate their own benefit even when prompted…

I’ve got a very similar situation as this: client has been disallowed the HCE as DWP are saying there is no liability to pay. We’re appealing this….since the appeal has been waiting to be heard, HCE has been paid on at least 3 separate assessment periods. Whenever we ring, they say it was a mistake, there is a note on the files saying don’t pay and human error has meant the note has not been read. We have reported it by phone call and on the journal, and after the second time I started doing complaints. Every time we do, they say that are making the note bigger, bolder, or pinned to the top. Still, a few months later, it happens again.
Every time we speak to them, they maintain that this will be seen as an overpayment and recoverable in the event the appeal is lost by client.
Very frustrating, as client just keeps randomly being paid his HCE some months and not others…makes it very hard to budget and maintain to the landlord that he cant afford his rent…

Andrew Dutton
forum member

Welfare rights service - Derbyshire County Council

Send message

Total Posts: 1955

Joined: 12 October 2012

I have one person who has now given permission for a pre-action letter to be sent and I just recalled another case where a FTT stated that although the overpayment was repayable in law there was ‘clear evidence’ of ‘consistent efforts’ made by the claimant to ensure DWP got the payment right and that ‘the overpayment may not have arisen had DWP taken further steps to query the situation’. I will ask that person too.