UK employer overpaid, now in US

[simmer]

My wife was on maternity leave with the NHS for about 6 months before we moved to the US. It turns out, due to a cock-up their end, my wife was overpaid for those 6 months. Anybody who is a nurse/doctor would appreciate that payslips for shiftwork can be confusing and variable, so it wasn't obvious that she was being overpaid. It was only when she sent her notice in that they found the error and demanded nearly £10k immediately - this was in May. Words cannot describe the feeling.

 

My first response was to ask for proof of the overpayment and to offer £10 per week for a year. Rather cheeky but it's expensive moving to another country, especially on one wage. For whatever reason they didn't get the letter so they wrote again - I just sent the same letter again.

 

Then a couple of months later they again demanded nearly £10k/ I'm pretty sure the figure was slightly different from last time. No breakdown of figures was received. Quite frankly the tone of the letter was nasty and they ignored the offer I made. I wrote back again, repeating the same offer, but noting that my wife was unemployed and we were short of money so - if anything - they would have to accept a lower figure the longer they drew it out.

 

Finally, today - six months after the initial letter - they wrote back again. They provided a breakdown of the overpayments and guess what? It was "only" £3.5k. They rejected the offer and said that if agreement could not be reached then they would pass the matter on to their debt recovery team (note: I think that's internal, not a debt collection agency). Again, the tone of the letter was condescending and accusatory.

 

However, the problem I have is that we don't have that sort of money. My wife is still unemployed and I'm self employed, and we are eating away at the little equity I have left from selling the house in the UK - and that will run out at some point. She would be employed but it's taken months and months for the local nursing board to get their backsides into gear with her qualifications and NCLEX (exam). I doubt she'll be employed for a couple more months yet, and even then only if she passes the exam which is pretty tough.

 

I'm not saying we won't pay this debt - I have made an offer twice which they have rejected, albeit for a lower figure. I really can't afford to offer them any more than what we already did, though of course I could pay it off over several years. The latest letter hinted that they would demand a change in repayment if my wife became employed - is that reasonable?

 

My other concern is whether the NHS would try to sell the debt (is it a debt when it's an overpayment, compared to like a credit card or loan?) to the US. They know where we live unfortunately. I did think whether there might be an Ombudsman for the NHS who could mediate if we reach a stalemate. Personally I feel like writing to the local Trust and higher for the nasty tones of the letters, how long it's taken so far, and how they could cock up the amount owed by 3x the value - twice.

 

Any ideas/tips much appreciated!

[Conniff]

Welcome simmer.

 

If you can't afford it, then you just pay what you can afford. Write to them again only this time you 'tell' them you can only afford £5 per month and request their account number and sort code so you can set up a standing order. If they continue to mess you around, you just tell them no account number means no money or you can ask for the account number and sort code without mentioning an amount and only when you have that tell them how much you can afford.

 

Don't be afraid of them, you have the money. Are you completely satisfied that you owe this at all? If not, then dispute it.

 

Would you like me to change your subject header to more reflect the problem you are having?

[Sidewinder]

Completely agree - you TELL them what you can afford, not ask politely whether they will accept your offer, and if they don't provide a means of payment then they won't be able to collect. In the unlikely event that they were to take you to Court, the fact that they rejected regular payments would not be do their advantage.

 

I don't believe it is likely that you would be chased for this in the US, but far better to try and avoid a default CCJ in case you ever need to come back to the UK.

[Surfer01]

Set up a standing order for payment once every 3 months otherwise currency transfer charges will kill anything you try and pay off.

[simmer]

Are you completely satisfied that you owe this at all? If not, then dispute it.

 

Not entirely, as they've come up with 2 wildly different figures, and I think the first two were different as well. But they're most likely right in that something is owed. The breakdown they sent through did have a whole bunch of numbers and abbreviations on so in fairness they probably have analysed it properly this time.

 

Would you like me to change your subject header to more reflect the problem you are having?

 

If you think it would help! I thought it explained the situation quite succinctly but maybe a different choice of words would help.

 

I don't believe it is likely that you would be chased for this in the US, but far better to try and avoid a default CCJ in case you ever need to come back to the UK.

 

I didn't think CCJs could even be issued for non-residents of the UK?

 

Set up a standing order for payment once every 3 months otherwise currency transfer charges will kill anything you try and pay off.

 

Currency charges would be up to them to sort out. After all, they discovered they made a mistake after notice had been handed in and we were already abroad. I'm tempted to send them US cheques even though we still have UK accounts as we would suffer currency charges if we were to transfer the amount to the UK and then issue a UK cheque. My estate agent, who undercharged me, accepted a US cheque for the difference so I know it'll work.

 

Thanks everybody. I think I have a better understanding of what I can do now.

[Sidewinder]

Whether they can obtain a CCJ or not depends on whether they are aware that you are resident outside the UK - are they communicating directly with you in the US or is your mail being forwarded? Papers could be served on a previous address and Judgment obtained by default. You could of course have this set aside, but it is more hassle that you clearly don't need!

[simmer]

Whether they can obtain a CCJ or not depends on whether they are aware that you are resident outside the UK - are they communicating directly with you in the US or is your mail being forwarded? Papers could be served on a previous address and Judgment obtained by default. You could of course have this set aside, but it is more hassle that you clearly don't need!

 

They know our address in the US and are sending mail directly to that address.

[simmer]

Can the actions of the person who sent the letters be regarded as harassment given that they've pooh-poohed our ability to repay it all immediately, and rejected our offers so far, and threatened to pass it to their debt recovery team (if that could be considered a threat)?

 

Just trying to delay it a little so I can get some money together.

 

Sorry to ask again but I'm keen to know the answer - if there is one - to "The latest letter hinted that they would demand a change in repayment if my wife became employed - is that reasonable?"

 

Many thanks.

[simmer]

Further to earlier, here are some phrases from the letter.

 

1. "You did not return to work following your maternity so it could be argued that you were at fault and could be regarded as fraud as you were receiving occupational maternity pay when you were not entitled to it". She signed a form at the start of maternity leave which had three options - returning to work, not returning to work, and not sure. She picked "returning" as that was her intention at the time.

 

2. "This was your second pregnancy at XXX [...] you will have been familiar with our policies". That was 4 years ago and I doubt the Ts&Cs are identical in that time.

 

3. "The amount is £4k which is significantly less than originally quoted [nearly £10k]. We are able to adjust tax, NI, and pension from the overpayment hence the difference in figures". Really? So tax, NI, and pension make up nearly 60% of the payment? And no, her pension contributions were small, as were the employer contributions.

[cerberusalert]

Under the Employment Rights Acts 1996 employers are not, as a general rule, entitled to make deductions from wages.

 

They can only do so in very limited circumstances, for example, where there has been an ‘overpayment’ of salary and also if the employee consents in writing to the deduction. Most contracts of employment will include a clause entitling the employer to make a deduction from wages and such a clause is still advisable.

 

When an employee has been overpaid in this way, it is usual for the employer to be able to recover the sums under one of the ways set out above. However, this case is an example of where that rationale does not work. A person is able to keep the overpayment if

 

(1) they demonstrate they have spent the money on something they cannot get their money back on, and

 

(2) that they did not realise it was given to them in error

 

In this case, Mrs Keenan argued that the money had been spent on her mortgage and other intangible things and also that she genuinely believed that she was entitled to the money.

 

Although Barclays argued that this was a genuine mistake entitling them to recover the money, Mrs Keenan was a very plausible witness whose evidence, the Employment Tribunal held, showed a genuine belief in the payment.

 

Employers should continue to include deduction from wages clauses in their contracts of employment. However, they should also carry out financial audits frequently to ensure that any errors are dealt with quickly. This is particularly so when purchasing a business or where an employee changes role or reduces their hours. The longer a mistake goes untraced, the more likely a claimant may be to argue they deserved it.

 

http://www.boyesturner.com/news-article.html?id=774

[simmer]

Thanks. I just finalised a letter to them yesterday and we discovered that they'd made a number of mistakes in the pay breakdown they gave us (monthly totals not consistent with actual pay for several months - some months fine, others not). In addition, they didn't pay her for the notice period she gave (30 days, as required), nor have they accounted for holiday accrual during the maternity leave which we estimate to be around 2 weeks. So, from their original £9k figure down to £3k and now I'm actually wondering if they owe US money instead!

[cerberusalert]

I'm actually wondering if they owe US money instead!

wouldn't be at all surprised.

 

Can't she contact her old Union for advice? Although I think she has a defence under the Employment Rights Acts 1996.

[simmer]

wouldn't be at all surprised.

 

Can't she contact her old Union for advice? Although I think she has a defence under the Employment Rights Acts 1996.

 

Technically she's not a union member anymore - but she did contact them a while ago and they pretty much said that she probably owed the money if that was what they said. I think I'm reasonably confident I can deal with anything that comes up now, thanks to this and other forums. They can't sell the debt across international waters without a court order in the US, though it doesn't stop them trying, and there are laws here to tell debt collectors to burger off (it's not all like you see on TV!), plus they have failed on three occasions to get the figures correct. Oh, and the original letter claimed they didn't know she was on maternity leave, yet the latest says that she was paid maternity allowance, so one of those statements is a lie. Frankly, if I was a judge, I'd start awarding damages to my wife for harassment and **** poor treatment by the NHS, though obviously I have a bias here!

[cerberusalert]

Did you see this thread? http://www.consumeractiongroup.co.uk/forum/showthread.php?282263-UK-Debt-Living-in-US

[simmer]

Did you see this thread?

 

It looks familiar - maybe it was that thread or maybe I read similar facts elsewhere. But thanks.

 

I've given them 5 weeks to get a reply to me (as indicated in the letter), postmarked by that date. This is to prevent the 2+ month lag in between letters that they have previously done. I have told them that they need to apologise to my wife, to correct the payroll figures, to include the holiday and notice period figures, and if they don't respond by that date then I will have no more to do with them. Remember, this will be their fourth attempt to get the numbers right so I think it's fair to give them an ultimatum now.

 

Now, if they still insist we owe money and start letting the hounds loose, they might try to sell the debt to a US debt collector. Allegedly such a collector can be turned away at the door with a simple "I don't recognise that debt" and they have to leave - allegedly. They can send threatening letters - they can be ignored, or kept in a safe place. But if they tried to do things "correctly" and tried to sue in a Californian court then your link comes into play - and given that the £3k figure is receding by the minute, I doubt it's financially worth their while to even try that route. And they can't get a UK CCJ with the knowledge that we're non-resident.

 

I think we're covered - unless I've missed something? Just hope she doesn't have to work for the NHS again...

[cerberusalert]

The majority of these threats of legal action are just that, threats. It is just not financially viable for them to pursue given the legal costs and time involved, particularly if they cannot be certain that they would be paid even if they won. Normally they just cut their losses and sell to a debt collector & given these circumstances it would have to be one at the bottom of the food chain who would buy it & even then they wouldn't go down the legal route.

 

The one thing to keep an eye on is if they try to get a CCJ here in the UK using a previous address. It's not usual but neither is it unknown of either, but even then that could be set-aside particularly as you have evidence of them communicating with you in the US.

[simmer]

If I understand correctly, if they tried a CCJ, it would be sent to our old address. My mum deals with mail redirected from there (only for a few more months though) so I guess she would see some sort of notification. How we get that set aside is a topic for more Googling. Thanks for the advice - hopefully it won't get to that point.

[cerberusalert]

Yes if the mail has been redirected to your mum's you would receive court papers prior to any hearing if they tried using your old address.

[simmer]

Progress: I eventually wrote to the CEO of the hospital. A few weeks later she (or her office) replied with a 2 page letter plus new spreadsheet. Assuming she is correct, the figures were roughly correct in the spreadsheet but mislabelled, including for May when it appeared she hadn't been "paid" but in fact it had been included in the figures, as had the annual leave. Minor corrections for car parking and a rather small compensation for the hassle deducted from what we owe. She still maintained that the difference from £9.5k to £3.5k was simply due to tax/NI/pension adjustments etc which I still struggle to believe.

 

What's more, she has offered a payment plan over 3 years which is far more manageable.

 

Thanks for the help everyone.

[Sidewinder]

Glad that you seem to have sorted it all out