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UC overpayment not challengeable

 

Sally63
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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 (CHDCA)
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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
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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 (CHDCA)
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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
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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 (CHDCA)
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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
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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
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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…....