Recovery of HB overpayment through UC due to DWP failing to tell LA that UC claim had been made
Our client claimed UC in April. It took the DWP 6 weeks to inform the LA that UC had been claimed which meant that HB paid a further 4 weeks HB rather than the standard 2 week run on. Client was unaware that this was happening.
Our Local Authority are adamant that there is not a recoverable overpayment but this is because the overpayment has been passed on to UC who are collecting it as a UC overpayment instead.
I have read the following Regs whic I think are the most relevant:
Treatment of overpayments
10.—(1) This regulation applies where—
(a)an award of universal credit is made to a claimant who was previously entitled to an existing benefit other than a tax credit or a joint-claim jobseeker’s allowance; and
(b)a payment of the existing benefit is made which includes payment (“the overpayment”) in respect of a period—
(i)during which the claimant is not entitled to that benefit (including non-entitlement which arises from termination of an award by virtue of an order made under section 150(3) of the Act or regulation 7, 8, or 14); and
(ii)which falls within an assessment period for universal credit.
(2) Where this regulation applies, for the purposes of calculating the amount of an award of universal credit in respect of an assessment period—
(a)regulation 66 of the Universal Credit Regulations (what is included in unearned income?) applies as if the overpayment which was made in respect of that assessment period were added to the descriptions of unearned income in paragraph (1)(b) of that regulation; and
(b)regulation 73 of the Universal Credit Regulations (unearned income calculated monthly) does not apply to the overpayment.
(3) In so far as any overpayment is taken into account in calculating the amount of an award of universal credit in accordance with this regulation, that payment may not be recovered as an overpayment under—
(a)the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 F1;
(b)the Housing Benefit Regulations 2006 F2; or
(c)the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 F
My question is, therefore, under the regs above is the client liable for the overpayment even though it was Official Error? Or will we be able to successfully argue that the DWP should have informed the LA more quickly and therefore client should not have to repay the overpayment?
Any advice would be gratefully received.
Hi Lucy = - unfortunately what the regs do is provide that it isn’t an overpayment of housing benefit but just unearned income for universal credit. Therefore the overpayment is of universal credit and is therefore recoverable regardless of offical error. The only thing you can ask for is discretion to waive the overpayment.
Was discussing this last week with an HB officer who was suggesting that para (3) of Reg 10 effectively disapplies the whole of Reg 10 in a case where the overpayment would not be recoverable under normal HB rules. I wasn’t convinced: it seems to me paras (1) and (2) apply in all cases and all para (3) does is protect the claimant from double recovery in cases where the overpayment would have been otherwise recoverable as an HB overpayment. Where the overpayment would not have been recoverable under HB Reg 100, para (3) isn’t needed but it doesn’t get you out of paras (1) and (2).
Thank you both - this is as I feared - now to appeal to their better nature to waive payment!