Terms & Conditions

[Anonymous]

The High Court has rejected CPAG’s application for JR of the DWP’s practice opf sending letters requesting recovery of overpayments that wer not caused by misrepresentation or failure to disclose. Here’s the transcript:

[url]http://www.bailii.org/ew/cases/EWHC/Admin/2009/341.html[/url]

The decision is that s71 of the Administration Act, which says overpayments caused by misrep/failure may be recovered, is neither expressly nor implicitly exclusive and does not mean that overpayments caused for ahny other reason are not recoverable.

I think this stands in contrast to overpayments of HB and CTB under sections 75 and 76: ss75 & 76 allow the Secretary of State to prescribe circumstances in which an overpayment is not recoverable and s/he has done so in HB Reg 100 etc. Here I think the legislation very clearly and expressly makes provision so that it is not necessary to fall back on the common law.

It is interesting that the comments in the CPAG case about the absurdity of not allowing DWP ever to recover any official error overpayments at all are more or less consistent with the “reasonably expected to know” test that is already written into the HB legislation.

My view of this case (if it is not successfully appealed) is that it does not apply to HB/CTB and councils should not start rubbing their hands with glee at the prospect of being able to ignore Reg 100

[seanosul]

Although LAs may have nothing to party about, I would bet that the DWP debt recovery unit may well do so.

[Anonymous]

Coo, blimey. I do (dimly) recall being amazed at the difference in overpayment recovery from IS to HB when I moved to my first HB job in 1992. When i was working on IS overpayments for DSS (as was) I checked overpayment calculations and sent the relevant letter about recovery (through the typing pool, no less!)

While I don’t now remember the exact circumstances that there were for recovery of IS overpayments it was a real shock to be told that in HB we recover all that we can, excepting LA error (which rarely happened at the time, of course).

That there are still different rules for recovery for us and for DWP is indicative of DWP’s attitude to LA’s and their people.

[Anonymous]

Coo, blimey. I do (dimly) recall being amazed at the difference in overpayment recovery from IS to HB when I moved to my first HB job in 1992. When i was working on IS overpayments for DSS (as was) I checked overpayment calculations and sent the relevant letter about recovery (through the typing pool, no less!)

While I don’t now remember the exact circumstances that there were for recovery of IS overpayments it was a real shock to be told that in HB we recover all that we can, excepting LA error (which rarely happened at the time, of course).

That there are still different rules for recovery for us and for DWP is indicative of DWP’s attitude to LA’s and their people.

[Kevin D]

I’m not professing to be at all expert on “estoppel”, but it strikes me there are potentially strong arguments that may well negate most attempts at common law recovery. Caselaw that may be relevant includes:

Avon County Council v Howlett [1983] 1 WLR 605
Derby v Scottish Equitable PLC (2001) EWCA Civ 369
NatWest Bank PLC v Somer International (2001) EWCA Civ 970

If the principles explored in the above cases can be properly applied to DWP overpayments made in error, any “celebrations” will be somewhat shortlived as WROs & reps discover the above cases.

[Anonymous]

Absolutely … all the court has said is that the legislation does not absolutely preclude recovery under any circumstances other than those specifically provided for by s71. It doesn’t mean that all overpayments are recovcerable – it means that some other overpayments might be recoverable in addition to those mentioned in s71. Whether an individual overpayment is recoverable will depend on common law principles such as mistake and estoppel.

In HB and CTB, the common law principles are in effect largely written into the legislation by way of the “reasonably expected to know” test

[Anonymous]

Beware the way the papers report these things – you might encounter claimants who believe the Court of Appeal has ruled that overpayments can only be recovered in cases of fraud. The reality is a bit more complex.

CPAG’s appeal has been upheld: three Court of Appeal judges have found unanimously that s71 of the Act is exhaustive as regards recovery of amounts that are found to be overpayments of benefit following the revision of an awarding decision.

[url]http://www.bailii.org/ew/cases/EWCA/Civ/2009/1058.html[/url]

As with HB/CTB, this doesn’t affect accidental payments released outside the adjudication framework, as in CH/269/2006. As I understand it, accidental or unlawful payments by a public authority that were not made under any formal decision-making powers, or were made without any statutory authority (like a bung to an outgoing Chief Exec) are very likely to be recoverable at common law because the case law is very heavily in a public authority’s favour when that happens (going back to the Auckland Harbour Board case, and more recent ones like Hinckley & Bosworth v Shaw). The defence of estoppel that one private individual might use in proceedings brouight by another appears to be weaker where public money is concerned.

But the new decision in the CPAG case seems to have settled things for now that if money was paid under an awarding decision, and it then turns out to be an overpayment, it can only be recovered in the way the Administration Act and Regs made thereunder allow. The DWP or LA cannot bypass the Administration Act and invoke common law.

Because the powers to recover under the Administration Act are more limited in the case of DWP benefits than they are in HB/CTB (in particular official error overpayments cannot be recovered, period) it is quite likely that some HB/CTB claimants are going to be falsely encouraged from reports of this case to believe that they don’t have to repay overpayments. Bad news for them – nothing has changed.

[Author]

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