UC arrears- MR or Supersession
I may be over thinking this and I could do with some other opinions
Cl was made redundant but due to an error by the employer paid wages for the next two months ( to which the cl was definitely not entitled). UC was (correctly) turned down due to income.
The employer is now asking for the wages back and the cl is contemplating asking for a recon of the UC decision on the grounds that their income for those two months was in fact zero, even though that wasn’t known at the time.
It could be an MR under Reg 61 but I was also thinking of a supersession under para 22 of part 3 Sch. 1 The Universal Credit, (Decisions and Appeals) Regulations 2013 as this might better cover the circumstances where the change was made (in this case when the error was discovered) after the original decision was made.
I should ad that my first thought was that the cl could say to the employer that the employer’s error lost the cl £x in UC and that they should only ask to recover the overpaid wages less £x in lost UC as that would be equitable but I’m not sure if the cl wants to do this.
Any thoughts gratefully received
This depends on something which has been discussed here on Rightsnet a couple of times.
Basically, what is the status of the payment statements uploaded to claimants’ UC accounts each month?
If there has been a change of circs (excluding a change of income which has been reported through RTI) then it is certainly a supersession taking affect from the start of the AP in question.
But what if there hasn’t been any such change? Legally, no supersession is needed (even when earned income reported through RTI has changed). However, DWP always write on the statement that the claimant has MR/appeal rights. That would suggest they always look at each month’s notice as being a superseding decision effective from the start of the AP in question (I think Elliot Kent thought this was the case).
If the above is true, then Para. 22 of Sch.1 to the UC (D&A) Regs will not be relevant once UC have provided a statement for a particular AP. The statement will have been a superseding decision, and will have been based on an amount of earned income for the current AP which you are arguing is incorrect. That means you’d need to get the supersession revised using an ‘any grounds’ revision provided for by Reg. 5 of the UC (D&A) Regs.