Cl has been overpaid UC and (after an Appeal) has to repay the overpayment. The overpayment was caused by his having too much capital to get any UC at all. This was, for no apparent reason that I can see, ignored by UC in the first instance and payment made but the decision was then revised and the overpayment raised- unfortunately the regs, as we know, make it recoverable regardless of the cause.
He would have been eligible for NS JSA as he had sufficient NI contributions at the time he made the UC claim but did not do so (he asserts that he was misadvised by UC/jobcentre that he could only claim UC).
Leaving aside the difficulty of actually getting proof that he was mis-advised (hence a previous post re getting records of calls) can his notional income from NS JSA be used as an offset and reduce the amount of the overpayment that is recoverable? The DMG/ADM says not, he has to have actually claimed NSJSA but on looking at the legislation I am not entirely clear where it says that this is the case.
Have I simply missed something? Any input gratefully received
The only offsetting you can do between UC and ns-JSA is that allowed by Reg 8(3) of The Social Security (Overpayments and Recovery) Regulations 2013. That only allows you to reduce the ns-JSA overpayment by the amount of UC ‘lost’ due to a change of circs not being notified to UC, or a mistake being made. Even then, it requires a UC claim to have been made.
You may have been looking at Reg 16 of those Regs, but that only covers offsetting within a particular benefit, and not between two benefits.
Thank you Charles, you are correct in that I had been looking at Reg16. Reg 8 seems to limit offsetting to overpayments of JSA but the current case is the other way round, the cl was overpaid UC (probably due to a error by UC) but could have claimed NS JSA - the loss to the public purse was arguably the amount of overpaid UC minus the notional amount of NSJSA that the cl could have had for the same period. It seems odd that the action of Reg 8 limits offsetting to only one direction
The offsetting scenario in reg 8 is where someone has claimed nsJSA and UC (so the UC is reduced by reference to the nsJSA) - where the nsJSA was actually overpaid, then there is a relative increase in the amount of UC which ought to have been paid. It doesn’t work the other way around because your level of UC entitlement doesn’t have any bearing on nsJSA.
The difference in your case was that the client didn’t actually claim nsJSA. If he had claimed it, then it would have been paid to him but because he didn’t claim it, he has no entitlement to it via s1 SSAA. There is no legal reason why he didn’t claim it - its just that someone told him not to bother.
His real complaint is that somebody told him not to bother claiming nsJSA whereas if he had been fully advised about his situation including the true impact of his capital, he ought to have made a claim for it. That might well be a legitimate complaint but it doesn’t really fall in the scope of statutory offsetting.