IS overpayment - overlap with CTC but also official error?

Morning all,

My client has been hit with an (allegedly) recoverable overpayment IS of just over £8,000 for the period 12/07 - 09/10. The reason given for the overpayment is that she did not inform them that she was entitled to WTC/CTC, and that her husbands working hours had increased.  It was found that the DWP had done a random scan of claims in October 2010 which had highlighted her case.

It is true that my client first claimed IS on grounds of having a baby from 5/12/07, and then later claimed WTC/CTC (on the advice of a relative) which was awarded from the same date. She says that she was not aware of how the award of WTC/CTC might affect her eligibility for IS and said it was not made clear to her that she needed to report the WTC/CTC award to DWP. She always informed HMRC that she was in receipt of IS and assumed that it was OK.

On further investigation it appears that the initial IS award was made to my client as a lone parent (at this point her husband was working but his immigration status was not decided) and that she had no entitlement after 15 weeks. This is documented on the original claim and on the overpayment letter, and a conversation with one of the BDC officers suggested that the claim should have been automatically closed at this point, but it was left open.

I have written to the DWP arguing that any overpayment made after the 15 weeks is not recoverable as it is an official error, but their response simply focussed on the responsibility of the claimant to inform them of any changes, and the fact that she did not inform them in this case.

I know that I cannot use ‘ignorance of the rules’ as an argument (I have told my client this!) but is it worth pursuing this 15 week issue as a way of at least reducing the overpayment?

Thanks

In my experience, the DWP will always stress the claimant’s legal duty to notify thne “appropriate benefit paying office” of ANY change in circumstances which may affect entitlement. This is explained on virtually all DWP/JCP correspondence (“changes you must tell us about”). Official Error would usually only apply if DWP had been notified of the change of circs but had failed to act on the information.

As an aside, How was your client’s partner able to work with no recourse to public funds?

Thanks.

I agree, I think I do need to query the husband’s financial/immigration situation at the time of the claim - all my client has told me is that at the time of the claim he was working part-time (16 hours a week) - he only went full time in May 2010.  She was aware she had been assessed as a single person. My client had been working herself before claiming IS, but only for a temp agency, so i don’t know if she would have qualified for JSA. I will ask.

Another problem is that my client has no paperwork relating to the original IS claim, or even anything very recent, other than the overpayment letters, so I have no evidence as to how the decision was made. Can I request the relevant documentation from the DWP? 

Any further suggestions on any aspect of the case welcome!

If you have data protection compliant form of authority from your client you could request copies of the “documents used to make the decision” from the relevant Benefit Delivery Centre. Although if the overpayment notices are from Debt Recovery you may have to enquire from them which is the original BDC which processed the claim. Your other option would be to appeal the recoverability of the OVPand wait for the casepapers. (which may take some time). The appeal could always be withdrawn if it becomes apparent there is little or no chance of success.

Although the circumstances were different, I wonder if the principle from a crminal law judgement assists.  In greatly oversimplified terms, it was found in LB Croydon v Shanahan [2010] EWCA Crim 98 found that if “change A” extinguished entitlement, subsequent changes were irrelevant in terms of cause, certainly for criminal law purposes.  As to how this may, or may not, translate to civil arguments for s.71 overpayments is less clear, but it may help.

Shanahan:  http://www.bailii.org/ew/cases/EWCA/Crim/2010/98.html

IS as a single parent doesn’t sound right - I agree with the post above that if the client was living with a partner then they are not a single parent, regardless of the immigration status of the partner. Sounds to me as though the award was on the basis of pregnancy - Schedule 1B category 14 - which fits with the closed award period. Therefore continuing to pay was official error
I have won appeals in this situation as the OP did not arise from the failure to disclose -
Sorry didn’t have time to elaborate earlier:
Reg 71(1) Social Security Administration Act 1992:
‘...and in consequence of the misrepresentation or failure-’

Thank you Kevin and Phil, I am seriously considering going down the appeal route over the ‘payment after 15 weeks’ issue now!

Just for information - there are several circumstances in which a person with no recourse to public funds can legally work in the uk:
- on a spouse visa for the first two years;
- on a student visa; and
on a work permit.
There may be others but those are the ones that come to mind.