Invoice received for overpayment - **CASE DROPPED **

[remus]

Hi all,

 

I work for the NHS bank, and have received an invoice from them, for over £2 thousand pounds.

 

It states that it is an overpayment on wages, from my first wage date, to Feb of this year. (about 3 1/2 years)

 

I inquired why I had received the invoice, and apparently I should have received an accompanying letter, explaining the reason for the invoice. (waiting for the letter).

 

The overpayment is to do with the holiday pay received each month, I have no idea how it is worked out, I just know the more hours I do, the more I get.

 

Any ideas how I respond to this, as the cut backs have reduced my hours down to 13 a week and there just isn't any work about at the moment (I am looking for other work, but as you know, times are hard all round).

 

Any thoughts?

[RachelMD]

I'd say you need to wait first of all for the accompanying letter to arrive, which should explain the details of the overpayment.

Whether or not their claim is valid or not will depend on the specifics of the situation.

[cerberusalert]

I would have a word with your union about it, no doubt others will have received similar.

[remus]

I would have a word with your union about it, no doubt others will have received similar.

 

thank you both for your response. Yes, I was told I was not the only one.

[Bigredbus]

Holiday pay received each month?

 

Care to give details, please?

[teaboy2]

holiday pay received each month? Sorry but if they have been paying you holiday pay as part of your standard wage for hours worked, then that is an illegal practices now. But it all depends up certain circumstances and payment of holiday is implemented. The following may prove as useful info for you - http://www.payroll-help.com/2010/10/question-about-rolled-up-holiday-pay/

[remus]

Thank you for pointing out the web site teaboy2, I have looked at it, and have a better idea (not a lot!) of what is going on. The rolling holiday pay is not the same circumstances as mine.

 

I have no contract, it is agency work. The holiday pay comes under WTD - working time directive, and is paid separately to the basic pay, and I believe it is a % of the hours worked.

 

My April payslip has a 'retro pay correct' of nearly 2000, followed by a' WTD Arrs' - minus the same amount. I thought they had made a mistake and corrected it at the time.

 

I will contact the CAB, as this is all as clear as mud to me.

 

Still waiting for the letter.

[teaboy2]

So instead of writing to you or contacting you in person to inform you of their error and arrange a schedule where you repay so much each month, they have sent you an invoice demanding the full amount? How long have they given you to pay the invoice?

[remus]

So instead of writing to you or contacting you in person to inform you of their error and arrange a schedule where you repay so much each month, they have sent you an invoice demanding the full amount? How long have they given you to pay the invoice?

 

Exactly teaboy2.

 

I have managed to misplace the invoice, hope it is at work. The payment date was defiantly the 27th, I'm sure May, but now I am wondering if it was June.

 

CAB not available to talk to till Friday.

[teaboy2]

Right

 

Well in that case issue a grievance,

 

State in the grievance letter that their demand for payment is unrealistic and unreasonable. Remind them that they are liable for ensure that they accounts were accurate and wages were paid accurately along with holiday payments and that is very hard to believe that they had failed to spot the error for 3 and 1/2 years. Their error as subsequent demand for repayment now leaves you in a position of financial detiriment, for which you would be entitled to make a claim for damages. To claim the error went unnoticed for such a long period of time, despite the accountant or person responsible for processing such payments being well versed in using the mathematical formula to work out what amount of accured holiday is due, and the fact that an regular account audits failed to pick up such error. Then it is simply ludicrous to claim that the error went unnoticed for 3 and a half years. However as they have been paying at that rate for so long then it is now an implied term of your contract (cant think of what the word for it is, though others will probably know the word when something becomes a term in your contract after a set period)

[remus]

Hi all, was hoping the NHS would issue a court summons! instead they have passed me to a debt collector.

Now if they are entitled to take the money back (I have not agreed to any amount, as I know there is no way I would have known I was being overpaid) why have they sent me to a debt collectors?

 

I have explained to the debt collectors about the 'over payment' via email, and as they say they are in contact with their client and are recommending legal action, I responded with so be it.

Now the threats are starting with

1 an agent will call round to request payment

2 location, valuation, removal of assets

3 service of legal proceedings

4 conduct investigation into your current financial and trading status.

 

Am I just dealing with debt collectors now?

Can I issue a summons against them re the over payment?

 

Not sure of my forward, anyone any suggestions, moral support etc...... help!

[remus]

teaboy, my apologies for not responding to your post, I do not know why I didn't do as you suggested at the time, as I agree with everything you have put there. Head in sand me thinks!

[assisted blonde]

No they cant just turn up and if by some chance they do tell them to leave, baliffs can put a levy on goods but I think they can only do this once you are in default of a court order, you dont have to give the debt collectors any info about your finances as far as I am aware, I would say if the agency wont talk to you tell them to take it to court and explain it all there.

Sounds like a nomal DCA threat o Gram to me

[remus]

thank you for your reply assisted blonde,

Yes, I thought I was just dealing with the DC, and they want me to ring, (no way,everything in writing).

I think I need to do teaboy's suggestion and contact HR and see what they have to say.

[Sidewinder]

You could always make a complaint to the employer about misuse of your personal data in passing details to a third party without your permission.....

 

Also, the DCA can do absolutely nothing - they have been hired merely to apply pressure as (they believe) that the stigma associated with the mere words 'debt collector' and accomapnied by other scary terms such as 'court' is often enough of a lever to force an otherwise unknowing person to pay up.

 

In very simple terms, you would have a good case to have any amount overpaid estopped on the grounds that the employer's actions gave you grounds to believe that you were entitled to the money and spent it in good faith. They know that they have a very shaky case to take to court at best and will probably let it go - spending £20 or so for a couple of letters from a DCA sounds like a final throw of the dice!

[remus]

thank you for that sidewinder, my thoughts too, I was going to send a copy of the DCAs latest letter along with my missive as yes, I am feeling very threatened, but I took Lloyds TSB to court, I may have lost, but I put up a damn good fight ;0)

[remus]

Morning all, and a Happy Easter,

 

Well, I have received a claim from the NHS.

 

don't think that's right!

[remus]

 

sorry bit of a mare with this,

POC

 

1. The claimant is engaged in business as a medical services provider.

2. The defendant was formerly employed by the claimant as a nursing auxillary.

still am

3. From 1/9/2007 to 28/2/2011 the defendant was overpaid the sum of 2000 net salary

salary? I have found out that it was actually to do with WTD holiday pay, % of wages

4. The defendant was made aware of the overpayment at which time by cover of its letter dated may 2011

never received a letter, only the invoice, and I rang to find out what it was all about.

Can anyone help me with my response please?

I'm quite happy to take this all the way, as I had no idea I was being overpaid as it was from day one of my employment, and I can only assume someone inputted the incorrect percentage. Also, I have only found out exactly what WTD is because of this. I also changed my circumstances, as I had a loan in 2009, to buy a computor.

 

any help gratefully received. just reading Teaboy2 post 10, think that will form part of my response, not sure if I am in a position to make a counterclaim?

They say its net salary, but on the wage slip, its in the same column as basic pay, surely that's taxable???

 

Edited March 29, 2013 by remus
input poc

[steampowered]

This is outrageous conduct. As this is the NHS perhaps worth booking to see your MP at one of his surgeries? Any help from the union? This sounds like a classic case of estoppel (try a google search) and I think should be defended accordingly.

 

Also check what your contract says about holiday pay, if the contract is unclear or if the contract does provide for holiday pay then this should go in the defence.

 

Draft defence:

 

1. Paragraph 1 of the Particulars of Claim is admitted.

2. Paragraph 2 of the Particulars of Claim is admitted, save that the Defendant is still employed as a [job title] by [employer].

3. The Claimant has no provided no details, explanation or calculations of the alleged overpayments despite repeated requests by the Defendant. Nor are these details provided in the Particulars of Claim. The Defendant was entitled to a salary of [x] plus holiday pay under his contract of employment. In the circumstances it is denied that there was any overpayment.

4. Alternatively, even if there was an overpayment, the Claimant is now estopped from recovering it. The alleged overpayments were made by the Claimant over a period of three and a half years from [date] to [February 2011]. Any overpayments were entirely the fault of Claimant and there was no reason why the Defendant should have been aware of any overpayment. As a major employer, if there were any overpayments the Claimant was grossly negligent in allowing them to continue over a period of three and a half years. At all times the Defendant acted in good faith and, without notice of the Claimant's claim, changed his position by spending his wages in reliance on the Claimant's conduct. The Defendant's financial situation has worsened as the Claimant has reduced the Defendant's hours to 13 per week. It would be grossly inequitable to require the Defendant to repay such alleged overpayments at this stage (Vaught v Tel Sell UK Ltd [2005] EWHC 2404 (QB)).

5. Paragraph 4 of the Particulars of Claim is denied. In May 2011 the Defendant received an invoice of [£....] which stated that it related to overpayment of holiday pay. There was no covering letter and no explanation of the alleged overpayment. The Claimant asked for an explanation in May 2011 but no explanation was provided. Even in the Particulars of Claim, the Claimant still has not provided an adequate explanation and has made no attempt to comply with the Practice Direction on Pre-Action Conduct.

6. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

[remus]

This is outrageous conduct. As this is the NHS perhaps worth booking to see your MP at one of his surgeries? Any help from the union? This sounds like a classic case of estoppel (try a google search) and I think should be defended accordingly.

 

Also check what your contract says about holiday pay, if the contract is unclear or if the contract does provide for holiday pay then this should go in the defence. paid leave- You are not entitled to any contractual leave. However you will be entitled to paid leave subject to the provisions of the Working Time Regulations 1998. Payment in respect of this will be made by a supplement of 4/48 (8.3%) of your monthly pay and will be identified separately on each pay advice you receive. You will not be entitled to any further payment in respect of this leave entitlement.

 

Draft defence:

 

1. Paragraph 1 of the Particulars of Claim is admitted.

2. Paragraph 2 of the Particulars of Claim is admitted, save that the Defendant is still employed as a [job title] by [employer].

3. The Claimant has no provided no details, explanation or calculations of the alleged overpayments despite repeated requests by the Defendant. I did receive a yearly breakdown and notice on that that they refunded 1000, (assume that would be the tax I paid) states-Employer WTD paid twice in error from September 2007 until February 2011. Nor are these details provided in the Particulars of Claim. Exactly, only an invoice attached with the full amount stated and -recovery of salary overpayment dates..The Defendant was entitled to a salary of [x] plus holiday pay under his contract of employment. nursing bank, holiday pay is a percentage In the circumstances it is denied that there was any overpayment.

4. Alternatively, even if there was an overpayment, the Claimant is now estopped from recovering it. The alleged overpayments were made by the Claimant over a period of three and a half years from [date] to [February 2011]. Any overpayments were entirely the fault of Claimant and there was no reason why the Defendant should have been aware of any overpayment. As a major employer, if there were any overpayments the Claimant was grossly negligent in allowing them to continue over a period of three and a half years. At all times the Defendant acted in good faith and, without notice of the Claimant's claim, changed his position by spending his wages in reliance on the Claimant's conduct. brilliant! The Defendant's financial situation has worsened as the Claimant has reduced the Defendant's hours to 13 per week. It would be grossly inequitable to require the Defendant to repay such alleged overpayments at this stage (Vaught v Tel Sell UK Ltd [2005] EWHC 2404 (QB)). will read through this..

5. Paragraph 4 of the Particulars of Claim is denied. In May 2011 the Defendant received an invoice of [£....] which stated that it related to overpayment of holiday( just salary) pay. There was no covering letter and no explanation of the alleged overpayment. The Claimant asked for an explanation in May 2011 but no explanation was provided. I contacted HR, and received a full breakdown from them, (just noticed the WTD was paid @11.59& that's not twice as much!) Even in the Particulars of Claim, the Claimant still has not provided an adequate explanation and has made no attempt to comply with the Practice Direction on Pre-Action Conduct. Exactly!

6. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

 

Thank you so much steampowered, you have made me dig out my paperwork, and see how they are being quite evasive.

 

I have also found a letter about bank workers being taken on contract if they have worked in the same position for more than a year, and can say yes to 8 questions, and I answer yes to all of them, and I am at the moment in negotiations with HR, as the department I have been working in for the past 5 years has just given me 4 weeks notice.

 

Heyho!

[becky2585]

Good advice.

 

It's not my area of law, but isn't there a pre action protocol that's advised to be followed? Ie, a letter before action, which they don't appear to have sent...

[remus]

Good point becky, going through paper work now to see if they have said "letter before action", thank you.

[remus]

the debt collectors letter CCI legal, dated 26/12/2012 (their keen, boxing day) states notice of intended legal proceedings.

the above letter is on the poc, 6, document 3, Must be the lba

 

just noticed, letter from ccilegal dated 4/1/13 threatening field agent, listing assests etc etc,

 

can they use the earlier letter as the lba? but still carry on with threats???

[steampowered]

On the contract, it seems you were entitled to a payment. Do check whether this would explain the alleged overpayment. At a guess, they may have tried to switch to a system where you get a fixed number of days paid leave rather than a system where you get a supplement on your monthly wages, and continued to pay the supplement by accident. However if they did not modify your contract to reflect this that is entirely their fault. I think this should go in the Defence - explain that you were entitled to a suppelement for holiday pay and quote the relevant part of your contract.

 

On the LBA, Beck is right that they should have sent an LBA complying with Annex A to the Pre-Action Protocol in the CPR. It sounds like their LBA was woefully deficient. Unfortunately, enforcement of non-compliance is a bit toothless especially in small claims track. However, it is relevant to the question of costs. There is generally no order as to costs in the small claims track unless one of the sides has acted badly. In this case I think the other side's conduct has been pretty bad (you still do not really know how they have arrived at this figure even after the POC), so you could perhaps ask for costs at the hearing, in the Defence I would simply say they have made very little attempt to comply with the Pre-Action Protocol and still have not made it clear what the overpayment is or how it was calculated.

 

On the letter dated 4/1/13, if it is one of those letters threatening to get a charge on your house, send bailiffs round, eat your children and so on; they cannot do any of these things unless and until they have won in court and got a court judgment.

[remus]

Hi all, update, they have dropped the claim! Of course it's not because of my defense.

 

Thanks all for the help, much appreciated