UC Overpayment. Official Error?
Client claimed UC from 10/07/2018 due to change of housing circs. She was previously receiving ESA(SG) income-related. It appears that although the UC claim was accepted, the ESA claim was not closed down, and continued to be paid until 10/12/2018.
Client has now been notified of an overpayment of approx. £2700 of UC, due to continued receipt of ESA(ir). As this is a UC overpayment it is fully recoverable.
Am I correct in thinking ESA would have been automatically notified (like TCO, Housing Ben, etc), when the UC claim was accepted? This would make the overpayment due to official error (failure to act on information held), and not recoverable under ESA Regs.
I feel that it is manifestly unfair to recover from the client, if the cause of the overpayment was ESA failure to act on information held.
Can anyone advise on strategy to possibly get this treated as an overpayment of ESA caused by official error?
Unfortunately the regs are written so that it isn’t an overpayment of ESA but income for the purposes of UC - therefore creates a UC overpayment which is always recoverable - no official error argument. So the only thing you can do is for DWP to use discretion to waive UC recovery :(
Hmmmm. That’s what I was afraid of.
So the client gets penalised for DWP incompetence. Brilliant!
I will be referring the matter to the local MP, for what it’s worth.
Cheers Paul. I was wondering if this approach has any legs.
Nothing ventured nothing gained Benny.
And Debt Recovery (it is that section rather than UC itself that will decide on discretion) need to be pushed even in circumstances where there is no real loss to public funds - e.g. in the case I have at present where the client was permitted to claim UC (and was paid for 10 months) for 3 children even after the cut-off date.
In this case, there was a real loss to public funds - the client has had both the ESA and UC for the same period. I’ve found it a useful exercise (when arguing that discretion should be exercised in UC overpayment case) to ask whether the overpayment would have been recoverable under legacy benefit rules. From what you’ve said so far, I’m not certain about this - yes, one office paying benefit A not telling another office paying benefit B about a change can be official error, as can the second office not acting on the information provided. But that isn’t necessarily the end of the matter if the claimant was given clear instructions about what they have to disclose and didn’t do so. These days, the INF 4 carries the catch-all phrase ‘you must tell us if you start receiving or stop receiving another benefit’ - so that can be difficult.
Benny, you also need to look at how DWP are applying UC(TP)Reg. 10. Are they recovering it as if it were an ‘ordinary’ overpayment by a deduction equivalent to the appropriate % of the UC standard allowance or ‘offsetting’ it in full by treating it as ‘other income’ for each of the assessment periods in which ESA continued to be paid? In your case as the assessment periods in which ESA was also paid must now have passed your client can’t now suffer a UC payment of £nil due to 100% offsetting (although I wouldn’t be surprised if they still do so).
I have seen cases where the overpayment occured in a passed ‘assessment period’ but DWP recover by ‘offsetting’ from UC in a subsequent period(s) as ‘income’ (recover the whole overpayment as a ‘lump sum’ by 100% deduction) even though I don’t think Reg 10 actually allows for that. It the overpayment is only ‘picked up’ after the relevant assessment period(s) has passed it must be recovered as an ‘ordinary’ deduction and not by ‘offsetting’.
But then are we surprised that DWP don’t follow the legislation?