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Offsetting of benefit to overpayment
I have two clients married living together who are severely disabled and receive DLA HRC HRM. They have recently been hit with a £5000 benefit overpayment plus HB/CTB. When they came to see me I assisted them to make a claim for ICA in respect of each other. We have a hearing later this month during which I am going to argue that the Carers Premiums that will be awarded re ICA claim ought to be taken into account and offset against the overpayment. Does anyone know why this argument won’t succeed even better why it will?
See reg’ 13 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988. However, there has to be a period of overlap between the overpayment period and the period of offsetting. If entitlement to the CP’s only begins after the end of the overpayment period then reg 13 does not apply. But, the result is effectively the same. The claimant simply uses the arrears to decrease the overpayment.
Note, the benefit to be offset has to be the same as the benefit overpaid, i.e. Income Support for Income Support, etc.
How about overpaid Income Support -
but client now converted to Support Group of ESA (after appeal) and ESA arrears due - as I understand it ESA are offering Debt Management the arrears first (although I’ve not been advised what they intend to do yet- but unless I am misunderstanding your last point- that might not be possible ??
The problem is that the reg talks about amounts which should have been payable on the basis of the claim as presented or misrepresentations being remedied before an award being made. So, you can’t offset potential JSA, for example, from an IS overpayment because amounts of JSA would not have been payable on an IS claim or award. Thus, an appeal that Tax Credits should have been offset failed. See also para 1(C) of reg13 and the commentary to the reg if you have access to Sweet and Maxwell.
What this provision does is give a claimant a statutory right to offset in the circumstances described. This benefits claimants with overpayments who don’t have arrears from later awards of benefit which stretch back into the overpayment period. It allows offset on, for what can crudely be described, as notional entitlements arising from the original claim or award, or, to be more precise, actual entitlements missed. For example, the Income Support section didn’t include child premiums (in old cases) because it wasn’t aware of child benefit being in payment. In the two cases cited here there is nothing to stop the DWP just clawing back an award of the arrears to reduce the overpayment of the previous award of benefit, or the claimant voluntarily handing it over.