Non-refund of Departmental Over payments of allowances etc

[ukaviator]

Between March 2006 and February 2007 the Department for Work and Pensions (DWP) wrote to over 65,000 claimants telling them it could take them to court under common law if they did not pay back overpayments of benefit. The letters say the money was paid due to DWP error and/or is not recoverable under social security law. In social security law, the test for when the DWP can recover overpayments of relevant benefits is set out in section 71 Social Security Administration Act.. The test in s71 broadly allows for recovery where the claimant has misrepresented or failed to disclose a material fact. Importantly the claimant has a right to appeal to a tribunal against a decision that an overpayment is recoverable under this test. If the overpayment is found to be recoverable under this test there are a number of ways the DWP can recover it including through deductions from current or future benefit payments.

 

The DWP accepted in the letters it wrote that the overpayments fell outside the test in s 71. The DWP accepted that the overpayments were caused by mistakes made by the DWP and were not caused by anything the claimants had done or failed to do. The DWP was arguing that even though these cases did not meet the test set out in s 71 they could still recover the overpayments through the county court at common law, ie outside the scheme set out in the social security legislation.

 

The evidence we had showed that on receipt of these letters many claimants were very worried and frightened by the threat of legal action. Social security law is extremely complicated. Claimants often do not realise that they are being overpaid. They spend the money received in good faith and have no means to repay. Claimants in receipt of these benefits are likely to be on extremely low incomes, and may be vulnerable, elderly or in poor health.

 

CPAG made an application for judicial review challenging the writing and sending of these letters. CPAG argued that the DWP had no legal right to recover overpayments at common law where the s71 test was not satisfied. We argued that the practice of writing these letters was unlawful. We asked the court to make a declaration that overpayments made in these circumstances were not recoverable at common law. At first instance we were not successful. By a judgment made in February 2009, the High Court decided that the Secretary of State could recover overpayments at common law. CPAG appealed this judgement to the Court of Appeal.

 

CPAG’s appeal has been successful. The Court of Appeal accepted CPAG’s argument that s 71 was part of a complete statutory scheme and that the DWP had no power to recover outside the scheme. Put simply, the DWP can only recover under s 71. This means that if overpayments are caused by the DWP’s own error the Department cannot recover them by suing at common law in the county courts. Claimants who have been overpaid as a result of the DWP’s own errors can choose to repay voluntarily if they wish to.

 

More:

 

Child Poverty Action Group: Overpayment Recovery Test Case

Edited December 2, 2009 by ukaviator

[dcdkpug]

what a case i like the style and congrats shows there are some good part time judges out there on earth

[clairus99]

interesting reading although unfortunately in my two (or is it three?) situations they are saying the benefit overpayment was my fault for what sounds like not telling them i was working. which is daft because if i was working i wouldnt have signed on. my problem is after all this time (we are talking 7-10 years ago here) how do i prove anything?

 

anyway, probably not appropriate to go into it right here, but interesting reading anyway. i'm going to scratch my head for a while...

[mowerman]

interesting reading although unfortunately in my two (or is it three?) situations they are saying the benefit overpayment was my fault for what sounds like not telling them i was working. which is daft because if i was working i wouldnt have signed on. my problem is after all this time (we are talking 7-10 years ago here) how do i prove anything?

 

anyway, probably not appropriate to go into it right here, but interesting reading anyway. i'm going to scratch my head for a while...

 

Simple. They say you were working you say you were not. You don't have to prove a negative whilst they do have to provide evidence to support their assertion.

[speedfreek]

Supreme Court rules DWP repayment demands unlawful

 

8.12.10

 

The Supreme Court has today dismissed an appeal by Department for Work and Pensions and ruled that the Secretary of State for Work and Pensions cannot recover overpayments of social security benefits through the courts where the claimant is not at fault.

 

Between March 2006 and February 2007 the Government wrote to over 65,000 claimants telling them it could sue them in the County Court if they did not pay back overpayments which were caused by the DWP’s own mistakes.

 

Commenting on today’s ruling the Chief Executive of Child Poverty Action Group, Alison Garnham, said:

 

“This is an important decision that will protect many vulnerable people from debts created by the Government’s own errors. Even though the letters claimants were sent acknowledged it was the Government’s own errors and the debt was unrecoverable under its own social security law, explicit threats of court action were still made.

 

“We hope that the Department will regret the anguish caused to many of the people who received the letters and will seek to improve its own administration to avoid overpayment problems. The people we spoke to did not know they had been paid too much. They were not fraudulent or feckless claimants trying to get extra money. Rather, they were the innocent victims of DWP error and the complexity of the benefit system.

 

“It is a very great concern that if the Government’s plans to end legal aid for welfare benefits proceed, claimants will not be able to get advice on these complex issues in future and may face injustices as a consequence.”

 

One witness, a pensioner, said:

 

“When I got the letter I was very worried. I am not saying I was suicidal but I nearly felt like that. I couldn’t have afforded to pay back £10,000. I would have had to take out a mortgage on my house to pay back that amount.”

 

Notes for editors

This case is about recovery of benefits administered by the Department for Work and Pensions and child benefit and guardian’s allowance. It does not cover housing benefit or tax credits cases.

The benefits affected include those paid to families and those with disabilities, as well as to pensioners.

The court’s decision means the government cannot write these letters to claimants in future. It will be a tremendous relief to those many thousands of claimants living in poverty who receive too money through no fault of their own.

Read our summary and guidance for advisers: Overpayment Recovery Test Case

For more information on CPAG test cases, visit: http://www.cpag.org.uk/cro/test.htm

For up-to-date background facts and stats on UK poverty, visit: http://www.cpag.org.uk/povertyfacts/

CPAG is the leading charity campaigning for the abolition of child poverty in the UK and for a better deal for low-income families and children.

CPAG is one of over 150 member organisations of the Campaign to End Child Poverty, campaigning for public and political commitment to ensure the goals of halving child poverty by 2010 and ending child poverty by 2020 are met.

The MoJ is consulting on proposals to reform legal aid

http://www.justice.gov.uk/consultations/legal-aid-reform-151110.htm

 

For further information please contact:

Tim Nichols

CPAG Press Officer

Tel. 020 7812 5216 or 07816 909302

[email protected]

 

For detailed legal enquiries, contact:

 

Sarah Clarke

Solicitor

[email protected]

Tel. 020 7812 5219

 

Graham Tegg

Solicitor

[email protected]

020 7812 5239

[frank_begbie]

Glad they won the case, but it just means the government will be making even more cuts to get the money back.

[Michael Browne]

Government cannot sue for benefit overpayments, court rules

 

Department of Work and Pensions cannot take legal action to recover money paid as a result of its own error

 

The supreme court ruled today that the government cannot recover overpayments of social security benefits through the courts where the claimant is not at fault.

 

In a landmark judgment, the court declined to accept the government's argument that the Department of Work and Pensions could sue recipients in the county court if they did not pay back overpayments that arose as a result of the department's error.

 

Between March 2006 and February 2007, the government wrote to more than 65,000 claimants saying it could sue them for overpayments

 

The legal argument, put in writing to those affected, was that the department was entitled to take benefit claimants to court under common law although the money was paid due to the department's error and would not be recoverable under social security law

 

A coalition of anti-poverty campaigners had said many claimants were worried and frightened by the threat of legal action. Social security payments are extremely complicated and claimants often do not realise that they are being overpaid

 

Campaigners argued that many had spent the money received and had no means to repay. Claimants in receipt of these benefits were likely to be on extremely low incomes, and could be vulnerable, elderly or in poor health, they said

 

The benefits affected included those paid to families, people with disabilities and pensioners. The DWP's own figures state that at least £1.1bn a year is paid out as a consequence of its own errors

 

The Child Poverty Action Group, said the court's ruling "affected not just many thousands of claimants but goes to the heart of the government's welfare reform agenda"http://www.guardian.co.uk/money/2010/dec/08/benefit-overpayments-court-legal-action

 

Full judgement here:

 

http://www.bailii.org/uk/cases/UKSC/2010/54.html

[kennyh]

Some years ago I applied, on line, for (the then) Working Family Tax Credits and an award was made.

A year or 2 later I was advised that the grant was too big and I would have to repay a vast sum. However, in keeping with many many other folk, officialdom would NOT provide details of how my grant had been assessed.

I 'dug in' and wrote to my MP who took it up and 'officialdom' backed off at about 1000mph and decided to reduce all future claims to effect repayment - they are doing this even now.

I hear on yesterday's news that the SCOJ has decided that, where a legitimate claim was made in good faith, then if overpayment occurs, officialdom can't claim it back.

As yet I haven't located 'chapter & verse' on the subject (and have emailed BBCs Money Box to try to identify the item) but haven't yet been on the SCOJ website if there is one.

Since this could affect many thousands of people (cos I know that very many errors were made by various gov.depts) does anybody have any input on this?

Edited December 9, 2010 by kennyh
reformatting

[Surfer01]

This has been in the housing and Council tax regulations for some time and we used it when they made a mistake with our assessment. When challenged they backed off. Thanks to CAG

[kennyh]

The detailed judgement is on the SCOJ (not DOJ) web-site; so now we'll see what we can achieve

[ErikaPNP]

The judgment does not apply to WFTC. I've posted here about the judgment - which also contains links to both the judgment and further informaiton from the body who DWP locked horns with - to their cost.

 

However Tax Credit do say that where the error is their fault they will not make you pay it back - but being "their error" in tax credit's world is different to that of some other benefits. What this effectively means is that, if they make an error in their award notice, you have 30 days to inform them of the error. If you fail to, they will recover the overpayment - such an error might be your income details for example. If you earn £30,000 and the award notice they send to you states £3,000 and you did not inform them that the information they held was incorrect, they view it as the applicant's error rather than theirs because the applicant failed to inform them that they held incorrect details.

 

To get a breakdown of your award, send a subject access request for the breakdown in writing, enclosing the statutory maximum payment of £10. They have no option but to comply with this as they are legally obliged to.

[kennyh]

Thanks Erica - never thought of an SAR for this purpose; are you sure that they ARE obliged to detail their methods - after all they already refused to for an MP. The banks of course won't disclose their method of calculating your charges.

[MARTIN3030]

Merged with earlier thread.

[ErikaPNP]

They are legally obliged to release information they hold on you, personally. For their calculation methods, this should be submitted as a freedom of information request rather than a SAR as that's information on their processes rather than personal information. They have to provide it unless the information is excluded by the act or would exceed the cost. If they are refusing to provide it, they need to say why.

 

Is this what you are looking for? Calculation of an award

If not, you can submit a FOI request here

[caro]

Thread stickied.

[kennyh]

Went to appeal and in 2012 DWP admitted that "it was all their fault". Go to appeal!