Recovering OPs while appeal pending

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    We have a claimant who has a huge OP of HB and CTB. He lost his appeal and was invoiced for the OP, but then appealed to the Commissioners. The invoice was withdrawn. Claimant lost his appeal to the Commissioners as well, so the invoice was reissued. However he is now appealing against the Commissioner’s decision.

    Does anyone know if the regs say that we cannot recover OPs whilst an appeal is pending. I realise that as a matter of good practice and fairness we should wait until the matter has been finally determined (perhaps by the House of Lords if claimant carries on as he has so far… ❗ ). But do the regs/any other applicable law actually prevent recovery in this situation? 😕

    Would be interested to see what others think. My personal view is that taking this kind of action probably goes against some form of natural justice/equity – I’m sure a court would probably frown on it, but I’m unable to put my finger on precisely why!

    John Boxall

    Going back to those long ago days when I was a complaints officer, the view of the Ombudsman was that it was maladministration to attempt to recover an overpayment while there was an outstanding appeal.

    I am not, however able to advise you on what the law says.

    I hope this helps

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield


    This is an age old issue.

    Good practise to suspend recovery of the overpayment pending the outcome of the appeal.

    The ombudsman doesn’t like the idea of continuing recovery, but there is nothing in the regulations to state that recovery MUST stop.


    Peter writes:
    There is no legislation to stop you recovering in the midst of an appeal. Colleagues have pointed to maladministration issues. My view is that you have been reasonable and can now recover.

    Appealing againt a Commissioner decision to the Court of Appeal requires leave on a point of law and unless the claimant is backed by a major advocacy group such as CPAG, I am dubious that it will go anyway. Only around 3% end at the next level and we have recently had a number of cases go to COA and the Tribunal of C so I cannot think there would be much interest in backing another old appeal esp as the law has changed from this April. Technically, the appeal process ends up in Europe not the Lords. That could mean a 10 year wait and unless the issue was absolutely vital, I do not believe that anyone would expect you to wait that long!

    Waiting until it got to the Commissioner is far longer than most agree to do but unless and until the COA agree to accept the appeal, I would now pursue. I suspect that all the various groups and the Ombudsman would consider that holding back until the Commissioner had reached a decision was fair and reasonable.

    Ghita writes:
    I will ask the Commissioner for you for his views at next week’s training in York.


    Ms Commissioner Fellner wrote at para 15 of CIS/2654/1999 in the context of entitlement to IS while an appeal was pending against an Incapacity Benefit decision:

    ” I agree with the submissions on behalf of the Secretary of State that the appellant was entitled to the benefit of paragraph 25 of Schedule 1B until the day before my colleague’s dismissal of his application for leave to appeal, ie until 29 3 99. I agree with the holding in CIS/210/94 (Mr Lewis assured me that he had found no adverse authority on the general principle) that the “determination” of an appeal occurs only once it can be taken no farther, and not merely once a tribunal has reached a conclusion. Indeed, it might be said that an appeal continues to be undetermined until any time allowed for appealing (or applying for judicial review of) the latest decision has elapsed, though I need not decide this since the appellant here had long been reawarded income support on the basis of incapacity by the time his application for leave to appeal was refused.”

    Mr Commissioner Rice also noted at para 6 of R(SB)5/91

    6. The same question which came before the tribunal appears to have been ventilated in an earlier case CSB/1158/1982, where at paragraph 9 the learned Commissioner stated as follows:
    “9 . . . . in my judgment the Limitation Act has no relevance. Recovery under section 20 (which is for the Secretary of State alone) only arises once the adjudicating authorities have determined there is a recoverable amount and have determined what it is. That is the sole jurisdiction of the adjudicating authorities. They are not concerned with whether money can or should be recovered, see paragraph 4 of R(SB) 44/83.”
    The Commissioner then went on to point out that time began to run within section 9(1) only after the appellate procedure had been exhausted:
    “Accordingly until adjudication is complete the Secretary of State has no right to recover. It is only from then that the Limitation Act period will apply as only then does the Secretary of State’s right of action accrue. To accept that notification of the date of the adjudication officer’s decision as the relevant date will mean that the Secretary of State was entitled as of that moment to recover notwithstanding that there was an appeal in progress. It would not I think be the intention of Parliament to provide for appeals against an initial determination if such were the case . . .”

    Those decisions do support the notion that recovery while an appeal is still pending is not only maladministration , it is unlawful. I suggest that such recovery could possibly give rise to a claim for restitution following Norwich CC v Stringer (2000)


    We have decided to bite the bullet and inform claimant’s solicitors that we will suspend recovery as and when leave to appeal to C of A is granted. I suspect they will dispute this, in which case we will probably have to agree to suspend, based on the authorities cited by Stainsby. Worth a shot though! We are talking about £35,000 OP in HB alone – so keen to start recovering! Thanks for your help. An interesting issue, I’m surprised it has not been considered by Commissioners/Courts more recently, particularly as the regs are silent on the matter.


    Stainsby – would you not agree that until leave is granted to the COA, no appeal is pending?


    Not if you apply Ms Commissioner Fellner’s observations with at least some measure of zeal
    “Indeed, it might be said that an appeal continues to be undetermined until any time allowed for appealing (or applying for judicial review of) the latest decision has elapsed,…”


    I don’t have the decision you are quoting from in full, only the extract above, Stainsby, but presumably if it “might be said” that this is the case, then “it might not be said” also? 8)

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