Advice please re Fairfax and DWP overpayment

[Bea Smith]

Hi,

 

I am looking for some advice please.

 

I have a debt of over 20 years old to the DWP of about £2K. This has been following me around over this time and there may even been a period of 6 years when contact was lost. Over the past few years I have been sending post dated cheques of £10 a month to what was Eversheds. Now Fairfax have really started hassling me. They have threatened court action. They asked for an income breakdown. I am not working or claiming benefit so I only sent them details of my child benefit and child tax credits. I live with a working partner but obviously, he cannot be responsible for my debt. The house is joint owned and Fairfax said that they could take out some order which would re-claim the money if the house were ever sold. They also mentioned someone coming around to take stuff.

 

Anyway, they frightened and hassled me into agreeing to pay £50 a month which I cannot afford. According to them, I have now defaulted twice on this payment and they are constantly phoning again.

 

After doing some research on here, I have been amazed to find out more about Fairfax. I would really appreciate some advice on what I can do.

 

Could I ask them to send me copies of my accounts with them? There may well be a 6 year gap which might mean the debt is statute barred? Even though I have started paying again, I read somewhere that once barred, it cannot be un-barred. I guess they are not going to want to send me the evidence though. Do they have to send it? This all could be wishful thinking on my part.

 

Could they be adding interest to the debt?

 

I also read that the DWP has 6 years to take action through the courts - does this have any relevance to my case?

 

Is there a number I can phone for help?

 

Last time I spoke to Fairfax, I jokingly suggested that I take out a loan to pay it back and the bloke agreed that this was something I could look into. I now read that this is illegal on their part. He is going to speak to me next week to find out how I'm getting on with it. He is also expecting me to send him another £50. I do not have £50 in my account to send.

 

I would really welcome some advice.

 

Thanks so much,

 

Bea

[sequenci]

Hi there, welcome to our forums.

 

Limitation issues and benefit overpayments are a touch more complicated than your typical credit card and loan scenarios. Do you know when the decision was first made that there was an overpayment?

[Bazooka Boo]

First off, they have no right to see your I&E their talking bowlarks when they ask for that, just makes them feel bigger than they really are.

 

As for paying them £50 a month, as this is out of your remit, cancel whatever method your paying it by, and please say you've not set up a direct debit?

 

Set up astanding order ONLY and pay an amount you can comfortably and realistically afford, ignore them as their greed will be their downfall, I need to do some research as to benefit repayments, was this an overpayment due to a 'administration' error on the DWP's part or your behalf?

 

Ignore their phonecalls, just hang up if they ring and tell them to put everything in writing only.

 

You need a paper trail of evidence, unless you are able to record your phoncalls, stay off the phone to them.

[Bea Smith]

Hi

 

I think I have posted this in the wrong place and so have posted it again under DEBTS.

 

Anyway, hands up on admitting that the overpayment was my fault. It must be over 20 years ago now. Someone reported me. Folly of youth and all that.

 

Bea

[Bazooka Boo]

Stick to one thread or it just confuses things bea..

[cerberusalert]

If there is a clear period of six years where no payment or written acknowledgement of the debt has been made then it will be Statute Barred and they cannot take enforcement, however the DWP have a partial exemption in that they can still collect the money from future payments. Send Fairfax this; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/599-letter-sent-when-debt-is-statute-barred

[Bea Smith]

Yes, really sorry about that. I didn't know where the first thread was heading and it went where I wasn't expecting it. Sorry. Could you delete this one and move that one by any chance?

 

Bea

[cerberusalert]

Two threads merged.

[smith_j]

Fairfax are bullies and the most horrible, obnoxious bunch ive ever come across.

I know what they are like so can sympathize with you fully.

They are a law unto themselves.

The sooner the authorities close these rogues down the better.

In the meantime do not speak to them on the phone and refuse to answer security questions if they phone you.

Tell the cretin who phones you next week were to go.

Once you stand up to them and they see they are unable to bully you they will soon back off as i found out.

[Bea Smith]

I have no idea if it could be statute barred as I have lost and thrown away all the documentation (stupidly). Out of sight, out of mind!

 

The only way to find out would be to ask them to send the account details.

 

I don't know how anyone could do their job.

 

Bea

[smith_j]

If its over 6 years then it will be stat barred.

Fairfax are chancers and will do/say anything to get money out of you.

Report them to the OFT and trading standards.

[Bea Smith]

Are they allowed to add interest to the debt?

 

Bea

[smith_j]

No they are not.

[Bea Smith]

Much as I would love to send them the statute barred letter, I do not know if there ever was an absence of contact for 6 years. I wish I had kept all the details of correspondence now.

 

Bea

[sequenci]

Bea

 

This is really important.

 

s5 of the limitation act doesn't cover overpayment of benefits. I need to know when the decision that there was an overpayment was made, did you ever receive a letter stating that there has been an overpayment, and if so when that may have been.

[Bea Smith]

I reckon it must have been about 1988. I went to the DSS for a meeting and I remember the bloke coming to my house. Actually, he was really nice and almost led me into giving good answers for the reason that I did it - like I had problems and stuff. It never went to court or anything. I can't remember what happened next. I may have signed on for a while but not long.

 

The next 12 years or so I would have been working so might have been off their radar. I can't exactly remember when Eversheds got back in touch. Could have been around 2000 but that's just a guess. There may have been some contact inbetween but I moved around quite a bit.

 

Thanks for trying to help.

 

Bea

[sequenci]

OK,

 

What you need to do is to send this letter

 

Your Name:

Your Address:

Date

 

To:

 

WITHOUT PREJUDICE

 

Dear Sir/Madam

 

Account No:

 

You have contacted me/us regarding the overpayment debt with the above reference number, which you claim is owed by myself/ourselves.

 

I would point out that under the Limitation Act 1980 Section 9 "An action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued".

 

I would also point out that the OFT say under their Debt Collection Guidance on statute barred debt that "it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period".

 

The last correspondence/payment/acknowledgement or payment of this debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me/us in the relevant period under Section 9 of the Limitation Act, I suggest that you are no longer able to take any court action against me/us to recover the alleged amount claimed.

 

The OFT Debt Collection Guidance states further that "continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970".

 

I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.

 

I look forward to your reply.

 

Yours faithfully

 

(Your signature)

[Bea Smith]

The letter sounds great but what about the fact that I am not sure there ever was a 6 year period without contact. And I have been making payments for the past 5 or so years.

 

Does that Limitation Act come into play because the debt was from 1988 or because we are presuming that there was a six year gap in contact?

 

Are the Limitation Act and Statute Barred two different things that we are confronting them with?

 

Does that Limitation Act mean that they cannot take me to court or involve the legal system to retrieve the money because it was so long ago?

 

Sos for all the questions - it's a bit confusing. I would like to be very confident before firing this letter off.

 

Thanks a million!

 

Bea

[sequenci]

the great thing about the act is that it puts the other party to strict proof, this means they have to prove beyond doubt that there was NOT a six year gap.

 

If there was a six year gap and you then started to re-pay the limitation argument would still stand. once a debt is 'frozen' by the six year rule, it can never be unfrozen - even when payments are resumed.

 

The act means that you would have a defence to legal action if there was a six year gap.

 

You could always ask for a full breakdown of your payments? There is a formal way of getting this information, it's called a subject access request. we can discuss that if need be

[Bea Smith]

Thanks,

 

So, the Limitation Act is directly related to Statute Barred.

 

I like the idea of requesting a breakdown of payments as then I could be sure that there had been a 6 year gap.

 

What would you advise? Send the letter or try and get a breakdown?

 

However, what if there is no 6 year gap, where do my rights stand in that case? What can they do to me if I can't pay what they demand? £10 a month was ok but £50 is too much.

 

Many thanks

 

Bea

[sequenci]

Yeah, you've got it!

 

The limitation act set the six year rule. If there has been a six year gap for this type of debt then the debt becomes 'statute barred'.

 

If it was me I would send the letter and see what they come back with.

 

If it transpires that you don't have a six year argument, you should complete a financial statement to show them that your £10 a month offer was (and still is) a reasonable offer.

 

if you fancy chatting a bit more about this I thoroughly recommend giving my very good friends at National Debtline a ring on 0808 808 4000 (They are a free charity and seriously know their stuff!)

[Bea Smith]

Thanks again,

 

Re the financial statement - one of the previous posters said that they had no rights to ask for one of these. They already sent me one and I only filled in my child benefit and child tax credits. I do not have any income as I am dependent upon my partner who works.

 

I will definitely phone the helpline number you have given me - thank-you.

 

I think I will ask Fairfax for a statement of my account and see what they say. If they see the 6 year gap, they are not going to want to send it to me. I have never been sent any kind of receipt for all the money I have paid them back so it's not unreasonable to want to see the evidence of payment.

 

Many thanks, Bea

[sequenci]

Hi again,

 

When negotiating a repayment proposal with any creditor it would be expected that you would complete a financial statement; This way the creditor can see that the offer you make is one that would be reasonable - you should include the child benefit and tax credits but I'm sure that'll get gobbled up quickly with your regular essential outgoings such as housekeeping, bills and clothing etc. I'm guessing that a reasonable offer will be a token offer an that £10 would be *more* than reasonable in my humble opinion

[Bea Smith]

Thanks again.

 

Yes, I filled in a form with details of child benefit and tax credits on but they said that £10 wasn't enough as the debt was so large. They seemed happy for me to be paying them out of my child benefit.

 

Of course I am living with my partner who pays the joint mortgage and household bills but that is with his earnings and he cannot be expected to pay my debt. We are not loaded.

 

I remember signing something that agreed to pay them £50 a month which I have now defaulted on twice according to them. Can they hold this signature against me?

Thanks,

Bea

Edited July 22, 2010 by Bea Smith
To add more info

[ErikaPNP]

Just to clarify. For benefits, there does not need to be a six year gap where you have failed to acknowledge. They have six years to take action to recover an overpayment from the date the final decision was made on the overpayment. If they have not taken action in those 6 years then the debt cannot be enforced via the court however, it can still be collected on a voluntary basis from the person who owes the debt if they are not receiving benefits, or it can be collected via a deduction from those who are receiving benefits (including state retirement pension).

 

They may say £10 isn't enough but if 6 years have passed without the DWP taking any action to recover (and this is what you need to establish), they can bloody well take it or leave it, because any payment made where the DWP have failed to take any recovery action in 6 years, and where the debtor is not receiving benefit is voluntary, and cannot be enforced.