Universal Credit Overpayment Appeal - MR rejected out of time

Hi

Wondering if anyone can help - we have a client who has an overpayment of UC due to still claiming after reaching SPA (misinformed by the DWP - we are currently making a complaint for this).

He was given the notification in March 2021 that UC needed to end and received an overpayment decision on 16th November 2021.

I understand that our client contacted the DWP to dispute this 5th and 18th November 2021, 9th December 2021, 4th January 2022 and 18th July 2022 to dispute the decision with both UC and PC (he was confused as to who to contact as DWP didn’t know themselves!!).

Client then contacted us in September 2022 and we put in an MR for UC overpayment (we were unaware at the time that he had contacted the DWP previously and when he received the decision letter was sent - client didn’t have letter).

Client has now received a decision to say our MR has been rejected as been out of time. My question is could we argue that his initial contact after the decision letter was an MR and we can do a late appeal?

Thanks

Adam

Provided revision was requested within 13 months (which it was, if the decision was made in November 2021 and the request made in September 2022), this is sufficient to get over the MR hurdle even if DWP refuse to deal with it due to lateness.

The appeal is not late and you do not need to justify the lateness of the revision request.

See R(CJ) and SG v SSWP (ESA) [2018] AACR 5 which is really one of those ‘must know’ decisions for welfare rights work.

Really the question is what you are appealing about, as on the face of it your client does indeed seem to have been overpaid?

Elliot Kent - 21 September 2023 01:10 PM

Really the question is what you are appealing about, as on the face of it your client does indeed seem to have been overpaid?

Indeed - and to expand on that a little;

1. All overpayments of UC are legally recoverable - even those caused by official error. It is, of course, possible to appeal on the basis that there was, in fact, no overpayment and that the claimant was actually entitled to the UC that was paid.

2. It is possible to request that an overpayment of UC, though legally recoverable, should not be recovered. The Secretary of State always has discretion as to whether to recover or not. Factors such as the cause of the overpayment being official error, that recovery would cause hardship, that the claimant has changed their position in consequence of what they were told by the DWP (i.e. they spent the money on the basis of what they were told by the DWP about their entitlement) are all relevant considerations here - and a recentish High Court decision can make that easier. But any challenge to a DWP’s decision about whether and how to exercise its discretion would ultimately have to be via judicial review; it’s not a matter an appeal tribunal has the power to decide.

3.  - @ bcfu - It isn’t entirely clear from your o/p but it sounds as if your client might have been paid both UC and PC for the same period? If that is the case, to some extent it might speak against discretion not to recover being exercised. It wouldn’t be decisive, but it would be harder to argue against than if there was solely an overpayment of UC that was caused because payment continued beyond the point your client reached retirement age and should have switched to PC. In the latter case, you’d be able to argue there had been no real loss to the public purse - i.e. though legally he was overpaid, he actually received less by way of benefit than he would have done had he been paid the correct benefit (PC being paid at a higher rate than UC).

Hi All,

Thanks for the information.

Firstly, he wasn’t in receipt of UC and PC at the same time. He stayed on UC until being told he should have claimed PC.

Secondly, how do we “get started” with asking for the Secretary of State to exercise discretion in not recovering the overpayment? Is this done through Judicial Review initially or do we go down another route first then JR if that doesn’t work?

Thanks

Adam

You might find these articles helpful - they deal with “legitimate expectation” defence to recovery of UC overpayments.

It seems to me that carrying on paying subsequent to when entitlement should have ended is pretty close to the Human Rights case discussed in the second one.

https://askcpag.org.uk/content/209068/overpyaments-and-legitimate-expectation-2023

https://askcpag.org.uk/content/209502/overpayments-legitimate-expectation-human-rights

I would not call this a “discretion” as I think a claimant is entitled to waiver if can demonstrate a legitimate expectation and that this is fair- that is a decision for the Court on JR which it retakes rather than one where it solely examines the quality of the DWP reasoning.

Additionally, it seems to me that the DWP have actually paid client less than s/he would have got had they made the correct decision and ended UC at appropriate time initially- client would presumably then have claimed SPC and received a higher amount. I would be considering in addition a financial redress for maladministration claim. The purpose of recovery is to recover losses to public purse. When the “loss” is purely notional as claimant delayed claim for correct benefit due to DWP wrongly paying UC on ongoing basis through no fault of claimant then recovery I would argue would not be lawful- it would not be being used for purpose for which the power is given to SSWP.

In terms of how to commence it then a letter to Debt Management - tell them to (1) pause recovery immediately whilst they consider (2) reply within 3 weeks and (3) let you know by return if they cannot resolve in that time or refuse to pause recovery immediately. They will ignore all of that but you having provided a reasonable time scale and asked them to say if they can’t meet it, which they have then ignored is likely to look good when you later get to send a pre action letter.

I would do a separate letter re the compensation. That one probably gets dealt with by the “Complaints and Redress Team (CReST) Team which is part of the Department’s Customer Experience Directorate ”—https://www.gov.uk/government/publications/compensation-for-poor-service-a-guide-for-dwp-staff/financial-redress-for-maladministration-staff-guide

However, I think it would be commenced by writing to UC office- as the complaints policy suggests that should be first port of call. https://www.gov.uk/government/organisations/department-for-work-pensions/about/complaints-procedure#contact-the-office-you’ve-been-dealing%20with

I continue to be astonished by these sorts of cases:

1. How did they manage to mess this up? Isn’t the date of birth a field on the UC computer system? I would have thought with all the millions they have spent on this then writing an “IF STATEMENT” which checks each AP whether claimant DOB is more than 66 years prior to start of AP and adding “THEN END UC WITH LETTER RE PC” would be fairly trivial.

2. How can someone looking at it think they should recover this when clearly he has lost out on correct entitlement due to them failing to do 1 above?

3. Of course the answer to 2 is that they have automated recovery and only consider not to recover when someone asks them to- which is also very arguably an unlawful use of their power to recover.

Wouldn’t be idiotic to assume they claw back millions from really poor vulnerable people by simply not engaging their brains to consider what they are supposed to. And then publish the figures all about the level of fraud and error and all the good things they are doing to sort it out…...

Rant over.

And should have said…. the CPAG JR Project would be happy to help once they, as sadly they are likely to, ignore your letters…..

https://cpag.org.uk/welfare-rights/judicial-review

(I’ll have to tell Jess I said this….).