Overpayment recovery in fraud case

Client incurred substantial overpayment of DLA and it went to court in 2018. Client admitted the offence, however their mental state was taken into account, a lesser charge to a much lower sum was proffered and eventually the Sherriff (Scotland) gave them an absolute discharge.

DWP is now recovering the overpayment but client thinks the absolute discharge means the o/p is written off. There was no challenge to the o/p decision via mand recon/appeal and we are now 4 years down the line.

My take is that a challenge should have been made against the o/p at the time but we are where we are and I don’t think the absolute discharge means that the o/p was wrong or that it is not recoverable. Given that the client admitted the offence and the absolute discharge is a technicality, I don’t see how we can do anything other than ask DWP to use their discretion not to recover.

Or am I missing something?

The Sheriff doesn’t have any power or influence over (1) the amount of the overpayment, (2) its recoverability or (3) whether or not it ought to be recovered. They may or may not have some power to make some sort of criminal law order for recovery of funds.

Making an absolute discharge strongly suggests that the Sheriff felt that your client shouldn’t have been prosecuted - but there is a far cry between an overpayment which is recoverable but doesn’t justify an actual criminal penalty and an overpayment which is not recoverable.

You are right that the decisions therefore stand. You are outside of time limits to challenge them through regular means but any time revision for example on official error grounds could still be considered.

Many thanks for the clarification and confirmation.