Query from Overpayments training course

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    Can I clarify a point that came out of the (excellent) Overpayments training course please?

    If an overpayment period straddles the commencement date of a new version of Reg 101, how do you determine which part of the overpayment is covered by which version?

    Do we have to look at which payments were issued after 10 April and see what period those payments were for?
    So therefore it would only those payments issued after 10 April that will contain the overpayments that will come under the new version of Reg 101 – even if those payments related to a period prior to 10 April?

    Or is it easier than that!?


    Hi Dawn, glad you enjoyed it.

    Obviously the view that the new Reg 101 is not retrospective is at this stage just the untested opinion of Paul Stagg. But as untested opinions go, his are as well-informed as you are likely to get. Therefore, lets work on the assumption that s16 of the Interpretation Act and the common law doctrine of a oresumption against retrospectivity do bite and that Reg 101 as amended from 10 April only applies to overpayments falling after that date.

    My view (and as untested opinions go, mine are slightly less well-informed than Paul Stagg’s, lets face it) would be that the whole of any payment made after the amendment date falls to be considered under the new Reg. I believe this to be the case because:

    – the Reg has changed in the way that causation of the overpayment determines the person from whom it is recoverable
    – causation must surely be attributable to the circumstances that applied at the time of payment. For example, if I lied about my income in February and the Council found out about my lies in May but then went ahead and paid me arrears dating back to February, the overpayment has been caused by a post-April official error
    – on the date when the Regs changed, the affected person(s) had not actually received any payment under the old version
    – it just seems awkward to me that the same payment can be affected by two sets of recovery rules

    Not particularly scientific, but the best I can do.


    Despite Paul Stagg’s opinion, I still hold that the date of your overpayment decision determines which version applies.

    This is because there can be no overpayment until you have carried out a valid revison or supersession and the law that will apply will be the law in force at the time you make that decision. Also the new Regs do not remove any defences to the recovery of an overpayment, unlike the legislation considered in Plewa.

    The defence of reasonable diligence was removed by the 1986 Act and the House of Lords held that this was contrary to the princple that the effect of legislation should not be retrospective. Their Lordships were however careful to point out that the princple against restrospectivity is not necessarily absolute and each case must be judged on its merits. (The merits will be a matter of fact and degree)

    All the new Regs do is to make the targets for revovery more specific, and they expand rather then contract the defences available to third parties. The opposite was the case in Plewa.

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