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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Overpayment? But I paid it all back!

Paul Stockton
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Epping Forest CAB

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I would be grateful for any ideas/experience in a bizarre situation faced by our client.

In 1997 he claimed JSA while working. He was prosecuted, pleaded guilty, and was put on probation, a condition of which was that he paid back the money. He says he went to his local DHSS (as it then was) office in the same year and paid it all back in cash. He got a receipt but can no longer find it (unsurprisingly).

About 17 years later he started to get letters from DWP saying he still owes the money.  He has explained the situation repeatedly but the letters keep coming. Now they are threatening DEA. They have said he can go to the ICE but the ICE isn’t taking new cases and in any event the ICE could not rule on who’s right.

It seems to me the best we could do is the ask for a supersession of the decision that there is an overpayment on the grounds of change of circumstance (ie that it has been paid off) or mistake of fact in relation to any letters issued since 1997, and if DWP refuse, appeal to the tribunal. Then try to stop the DEA by threatening JR.

Any better ideas?

scott mcinally
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Inclusion manager - Durham County Council

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Does he still have the decision of the court? Back in the 90’s I represented someone who had an been required by the court to pay a compensation order (in lieu of a prison sentence) and repay the overpayment. He thought in paying the compensation order, he was paying the overpayment. He didn’t keep up with the compensation order and went to prison. He then was pursued for the overpayment a few years later, and was pretty miffed that his time in prison hadn’t wiped out the overpayment. Of course it had only wiped out the compensation order.

Our starting point was to ask for the overpayment decision upon which recovery was based. Chances are his file has been weeded and there may be no decision. I think that’s where I would begin and work from there.

Paul Stockton
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Epping Forest CAB

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Thanks. The client’s recollection is that there wasn’t a compensation order, just a condition of his probation.

scott mcinally
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Inclusion manager - Durham County Council

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The case with had actually went to an oral hearing before then Commissioner Levenson, as I lost the tribunal hearing, and was held to be a non-coverable overpayment as there was no certified decision of the court on file and as the tribunal had proceeded on the basis that the onus of proof was on the appellant they had erred in law.

I really would ask to see the case history.

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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Two quick things:

1 - 17 years down the line you could open this up with a request for the evidence DWP have that the o/p was recoverable. Always good to remember here that the onus rests on them to show recoverability rather than him to show otherwise. If the evidence has been weeded and he’s a credible witness then you’re halfway there.

2 - The paying in cash rang alarm bells with me. Maybe paying a comp. order in cash yes but an o/p? That seems unlikely to me.

BP
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Grangemouth CAB

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One other thought. If he was put on probation with a condition that he paid back the money, the fact that he was not then imprisoned suggests he did indeed pay the money back. Would the court have any documentation to this effect?

juliem
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Macmillan welfare rights advisor - Barnsley MBC, Barnsley

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Mike Hughes - 14 September 2021 05:40 PM

Two quick things:

1 - 17 years down the line you could open this up with a request for the evidence DWP have that the o/p was recoverable. Always good to remember here that the onus rests on them to show recoverability rather than him to show otherwise. If the evidence has been weeded and he’s a credible witness then you’re halfway there.

2 - The paying in cash rang alarm bells with me. Maybe paying a comp. order in cash yes but an o/p? That seems unlikely to me.

re the paying in cash - in my Housing Benefit processing days in the late 1990s, I once was allowed to make a Home Visit to a tenant in his 80s to explain the overpayment he had been notified of. He had not declared an account and so had an overpayment of £2000 and some pounds.  He came into the office with the money in a carrier bag, having taken it out of the building society and walked across town and a car park with it. The money came from closing yet another account he hadn’t declared!.