ESA overpaid post UC migration - official error?
Client went claimed UC after he moved to a new borough. He tells me that after he claimed UC his ESA did not stop. DWP eventually realised and raised an ESA overpayment which he has already repaid.
I have seen this the other way round - clients on CBESA which continued but not taken into account for the UC claim. Those have been straightforward as all UC o/ps are recoverable.
But this situation is different and I have two queries
Firstly does client have a good argument that the ESA continuing was an official error and that it should not be recoverable? I know that in other situations informing one part of the DWP (e.g. DLA) has not been sufficient to count as informing another part (e.g. ESA). But in this situation both ESA and UC are under JCP and it seems like a real failure in administration not to have the system set up so that two mutually exclusive benefits cannot be claimed at the same time? I know for example that when somebody claims UC the system sends through a ‘stop notice’ to the claimant’s local authority so that they can stop the HB - it would seem bizarre if they didn’t have a similar system in place for legacy/‘heritage’ benefits?!?
Secondly - if client was able to successfully argue that the o/p was not recoverable could he ask for the money back - even though he wasn’t actually entitled to it?
Any thoughts would be much welcomed
I don’t know to who or how he paid this back, but technically this IS a UC overpayment. See reg. 10 of the Transitional Provisions Regs.
In cases of official error of this sort I have found that DWP refuses to go any further than saying that under UC overpayment rules, any and all overpayments are repayable no matter what the cause. They won’t look at their own mistakes. There is no equivalent of COP26 so the system is even harsher than HMRC’s.
So far they have refused to look at any complaints regarding maladministration - it is as if they are incapable of maladministration because the rules say that the overpayment is recoverable.
In cases where UC and IRESA have been paid at the same time, we have had DWP admit they caused the overpayment by not communicating properly between departments, but they have then refused complaints of maladministration because they do not regard themselves as ‘time bound’ in the process of closing down IRESA when UC is claimed. Whatever that means.
This appears to me to be carte blanche to mess up and then stick the claimant with the bill. There is no incentive for DWP not to make mistakes.
I’m raising this with various MPs as our complaints hit a brick wall one by one, and I have one case ready to go to ICE.
I have a case on the same issue ready to go to ICE as well - the most recent response from the Complaints Team pretty much said they don’t understand the complaint because the overpayment is nearly paid back.. It’s also going to appeal because to date we have not been given a proper explanation or calculation.
Agree completely it means they can get away with any level of incompetence or maladministration.
see https://www.rightsnet.org.uk/forums/viewthread/14064 for letter from Amber Rudd to Oliver Letwin on causation of overpayment being a relevant consideration when deciding whether or not to recover. As regards appealing, I have had one appeal lead to a revised decision not being recoverable because previous decisions had not been superseded or revised - obviously, they can re-make the decision properly, although it hasn’t happened yet (probably because Debt Management are still recovering the overpayment as they refuse to understand or acknowledge the revised decision)
Thanks everyone - enlightening as always!
Enjoy your bank holiday :)