NHS Trust Whittington/FWJ Legal Claimform - Salary Overpayment

[Manxman in exile]

37 minutes ago, BankFodder said:

Folllow the SAR link

 

Make sure you send of the claim acknowledgement.  You can do it this weeken

 

As one of the MSE posters who suggested the OP come here for advice, can I ask whether the OP should be doing a SAR to the claimant, or to her former NHS employer, or both?  [EDIT: Sorry - the claimant's name is redacted so it may be her former employer - I'd assumed a third party.]  As a former NHS finance manager myself, I'm surprised that her previous employer don't seem to have already provided a breakdown of the overpayment.

 

(Also, the claim refers to an invoice from 2013 which - from my experience - would have been for the full amount to be repaid, but the claim is also asking for interest on this full(?) amount despite the OP having made some repayments?)

Edited August 10, 2019 by Manxman in exile
clarification

[Manxman in exile]

I can't comment on the procedural advice given here (but if I were in your position this is definitely one of the forums I'd go to for help as I advised you on MSE) but I would make a couple of general observations:

 

1.  You say you aren't sure you've actually been overpaid.  I understand that but I'd have to say from my own experience (and I've dealt with NHS overpayments from both sides of the fence) I think it's highly unlikely that the trust would be suing you if you had not been overpaid.  So I think it would be prudent to assume that there is an overpayment.  (Having said that, it could be a complete cockup by the trust and they just might be wrong.)

 

2.  I know BankFodder has suggested that estoppel might be a possible defence but, again in my experience, it's rarely successful, but (a) see 3. below and (b) other posters on here may have experience of estoppel succeeding.

 

3.  Salary overpayments in the NHS are extremely common and happen all the time.  All the trusts I have been connected with have very well-tested procedures for preventing them in the first place or dealing with them when they do happen.  As I said on your other thread on MSE, I'm amazed that it took them over a year (is that right?) to identify that you'd been overpaid (although that doesn't necessarily give you a defence in itself - they had six years to chase you).

 

When you handed in your notice, your manager should have completed an Employee Termination form (a form P4 where I worked) notifying payroll and HR of your leaving date.  It sounds as if this was not done in time (or got lost) and was not actioned to remove you from payroll.  But again, I don't understand why it took over a year to discover the overpayment.

 

To return to estoppel, I wonder whether these failures by the trust together with your change of bank accounts etc etc around the time of the overpayment might strengthen an estoppel defence by you and help to establish that you acted in good faith and could not be expected to notice the overpayment.  I don't know.

 

4.  A SAR is a good idea I think.  I have no experience of them but I think I would be especially asking the trust for all information surrounding your resignation, why the overpayment happened, and details of how the overpayment has been calculated, and what they've done to chase it up.  (If I were you I would be very interested to see a copy of your resignation letter and the associated Employee Termination form.  I'd want to see if the resignation letter was date stamped when received and also the dates on the termination form).  You'd also want to see any internal communications discussing the overpayment.

 

Whether you can (or should) ask for these in a SAR I don't know - you'll have to rely on more knowledgeable people here to advise on that.

 

Two possible complications re a SAR: first, I don't know how the timescales for a SAR tie in with your need to file a defence within a particular time frame.

 

Second, your old trust's payroll may very well be outsourced to a third party payroll provider and they may hold most of the relevant information concerning the overpayment - especially the calculation.  (Maybe that's why the trust has not been helpful in this respect - they don't have the info?).  I simply don't know if a SAR to the trust would cover this or whether you'd need to do another SAR to the payroll provider.  Hopefully others here with more practical experience can advise.

 

I don't know if this is good advice or not, but I'd contact the trust again on Monday and ask for details of the overpayment and if they won't provide it, ask why not(?).  I'd also ask who their payroll provider is so you can SAR them if necessary.

 

I wish you good luck because you are a bit of a victim here, but I don't think your chances are great.  Sorry.  (See what others advise - that's why I suggested coming here!)

 

EDIT: Cross posted with other posts but think my points are still valid.  Also re the Termination form, the trust ought, if I remember correctly, hold a copy on your personal file as well as in payroll and possibly HR.

 

Oh - as per BankFodder and dx100, make sure you lodge your Acknowledgement of Service - I think you've then got some time to sort out a defence (if there is one) but don't miss any deadlines.

 

Again, good luck! 

Edited August 11, 2019 by Manxman in exile
addition

[Manxman in exile]

I'm glad my rather rambling post is considered helpful - I was afraid it may overcomplicate matters.

 

Do as BF and dx100 suggest and make sure you lodge Acknowledgement of service with the court and the 31:14 (?) dx100 has referred to.

 

I think you have copies of the relevant payslips, but if not, ask for them too.  I can't remember if NHS payslips will show the receiving bank a/c or not.  You could ask again for details of the receiving bank a/c.

 

I don't know but I presume that if you lose the case (which I fear you may) the court can give you some sort of payment plan so that you are not lumbered with having to pay in one go.  (I'm sure the others can advise).

 

There's just one other potential complication that's nagging me, but I'll post that separately so as not to cause overload!

 

Potential tax and NI complication

 

I don't know if this may be an issue or not as it's outside my experience.  But you may need to be aware of it and keep it in mind.

 

Normally with a salary overpayment the employer recovers the net amount paid to you, and the payroll system then automatically corrects the tax and NI position by adjusting your cumulative deductions for the current tax year.  I'm not sure how this would work in your situation as the overpayment happened so long ago that it's possible the payroll system cannot correct for tax and NI.  (I presume they would have to set up some sort of dummy record for you on payroll and I'm not even sure if that's possible).

 

What that means is, if the trust can't get back from HMRC the tax and NI they've paid over in respect of the overpayment, they may be trying to recover it from you.  This is one of several reasons why you need to see a detailed breakdown of the overpayment and what it is made up of.

 

I'm raising this point because I think from your earlier posts the trust has indicated that they are only recovering the net overpayment, but I wonder if they might be having to recover the gross overpayment because so much time has elapsed.

 

This could be a problem for you as if you have to pay the tax back too, it may now be too late for you to reclaim it from HMRC.

 

I hope you can understand what I'm trying to say.  I don't know what the answer is as I've never had experience of chasing an overpayment that is this old.

 

What I would suggest is don't worry about this at the moment, simply follow the advice BF and dx100 give, but simply be aware that there may be an added tax dimension.  Hopefully you'll know when you (eventually) see the overpayment calculation.

 

(I think it better to point this out now rather than have it surprise you later).

 

(For BankFodder and dx100uk to consider)

 

The Trust Secretary where I worked was a stickler for the correct maintenance of trust records.  We had a comprehensive and prescriptive Document Retention Policy and under that policy written documents like personal files of leavers would be destroyed after six years.  (Would still have had electronic payroll records on ESR - the then national NHS integrated HR and payroll system.  Not sure how GDPR now impacts on that).

 

In terms of disclosure and SAR, I would not be surprised if original termination forms etc had been destroyed by now, and this might include original overpayment calculations.  Of course, one would expect any documentation appertaining to a live overpayment file to be retained if common sense prevailed - but who knows?  The history provided by the OP could be said to show that the trust is not exactly on its toes procedure wise.

 

I'm just wondering whether this might help the OP in that it could be difficult for the trust to provide evidence of an overpayment.  (Although of course there would be an electronic record of the payments with a leaving date, but perhaps no other evidence of a leaving date - ie a resignation letter or an Employee Termination form).

 

Just speculation on my part - don't know if it's relevant or not.

 

I'll stop posting as I think that is all I can contribute - hope it's not too much...

[Manxman in exile]

Ah - you've been busy - well done.

 

Don't know if you should approach the trust or solicitors to try to agree some sort of payment plan now or not.  I think I'd wait a while to see what your requests for info result in.  I think you need to be guided by the other posters here who know more than me.

 

I think the main thing is to make sure you don't miss any deadlines (filing a defence - if the consensus here is that you have one).

 

If it looks like you don't have a defence then is the time to negotiate a payment plan - I would suggest.  See what others say.

[Manxman in exile]

So that's their previous reply to you?  I don't think that would now satisfy a SAR, but I don't know.

 

If you follow the SAR link within this thread it appears to say that it must go to the original creditor and I presume they have to answer it.  I'm afraid I can't make any further sensible comment on this aspect as it is mostly new to me.  I suggest you follow the SAR link and study it.

 

You'll need to rely on dx100 and BF and others to advise further.

[Manxman in exile]

Not very helpful, are they.  (They may view you as being "awkward".)

 

Make sure (if you can) that you have a record of all your requests for information about the overpayment.  May be of use later.

 

As I've said before, I've experience of the mechanisms around NHS overpayments but none of where a trust has actually sued someone.  That's why you need to rely on the others for procedural advice and how to defend it, and not on me.  I've also never heard of one this old!

 

Couple of questions.  (No need to give me answers but BF and dx100uk may need them).

 

1.  BankFodder mentioned in #20 that the people claiming against you should have followed a pre-action protocol.  I think you should have received a Letter Before Action (LBA) giving you notice that they would be making a claim.  Did they send one?

 

2.  It is your former employer, Whittington NHS Trust (whatever) that is suing you and not a DCA?

 

I think dx100uk posted earlier that you have 33 days (?) from the date of the claim to lodge a defence - so you've got some time yet.  I think(?) they also advised you to make sure you do lodge a defence even if you haven't had all the replies by then.

 

Bump the thread if you're concerned you are running out of time.

 

 

[Manxman in exile]

So if I've read that correctly the debt collection people (and/or the trust) say they've supplied you with copies of everything they have?  I'm surprised* they can't supply a copy of (1) your resignation letter and (2) your Employee Termination form, but perhaps they feel they don't need to.  If I were them I think I'd want to rely on those to establish when you actually left the trust.  (Presumably the copy payslips they've provided don't have a leave date - otherwise you would not have been overpaid in the first place?).  They may think it's not necessary to provide this information as you can't really be allowed to query the accuracy of the leaving date in question if you know it's correct.  (I presume the leaving date they have used to calculate the overpayment is actually correct?).

 

As I've said before I'm well out of my comfort zone on the question of legal procedure and tactics.  Wait for other responses and bump again if no-one else comes back.  (You could also try bumping your original thread on MSE for other views).

 

Also again, I wouldn't be too confident of winning this and I think you may end up having to offer another payment plan.

 

*  After this passage of time perhaps I'm not surprised that they can't supply them.

[Manxman in exile]

Hi

 

Don't know if the invoice discrepancy is significant or not.

 

I see you've had no further input from dx100uk or BankFodder yet.

 

Have you worked out (or do you know) the deadline for submitting a defence?  I think dx100uk said it should be 33rd(?) day after the date of the claim (see their post towards end of page 1).

 

If you've had no further input by the weekend I'd see if there's anyway of contacting them other than this thread if I were you.  (I assume you can use the message tool - envelope icon towards top right of screen?)

Edited August 22, 2019 by Manxman in exile
addition

[Manxman in exile]

I'm not sure.

 

dx100uk and BankFodder are the only two experienced posters who've been on this thread.

 

If you've not heard anything after say 48 hours from your last post you may be able to send them a message?  I've never had to do that but there seems that there may be a way of doing it if you look at their profiles (there is a message icon on each poster's profile).  Not sure if that may be some sort of breach of forum etiquette?

 

You could try contacting honeybee who is one of the site admin team and seems to be very good at moving threads to the appropriate boards and alerting other posters.

 

EDIT: it's honeybee13

Edited September 7, 2019 by Manxman in exile
addition

[Manxman in exile]

Hi Bumblebee

 

So you got your defence off in time - well done.

 

As I've posted above, I see you as a bit of a victim here, but I don't think you have much of a chance of winning this unless the NHS trust is completely incompetent (not unknown - I worked for one!)

 

I would expect that the trust have all their ducks in a row and can prove an overpayment - but maybe they can't.  See my post at the top of this page (2) where I suggest the sort of documentation that the trust would need to establish an overpayment.  I believe you've asked for copies of the relevant documents but you've not had them.  I don't know if that helps you or not.

 

I think it's necessary for the trust to "prove" the debt/overpayment so they need to produce some paperwork that evidences it.

 

I would rely on what dx100uk and BankFodder advise, but I wonder if it might be helpful to post redacted versions of the trust's particulars of claim and your defence?

 

Again, I suspect you have little chance of winning this except on some procedural technicality, but all power to your elbow.  Good luck...