Hello to all

[lorsato]

Hi to all
Looking for some advice, hopefully someone on here will be able to advise.

I am in receipt of Incapacity benefit/Income Support, DLA and my wife receives carers allowance. My claim has been ongoing since 1997, whilst DLA since 2000 and My wife's carer allowance since 2005. During the years 2004 - 2009 my wife took up casual part time work. I notified the DWP that she had commenced part time work her hourly rate of pay and the maximum hours she could possibly work in any given week. As this work was casual the hours she worked during this period fluctuated from a minimum of 2 hours per week to a maximum of 10 hours per week, whilst some weeks she did not work at all. In Dec 2011 I received a letter from the DWP compliance Officer, who wanted to interview me in respect to a query that had arisen on my benefit. That query turned out to be the part time work that my wife had undertaken during the years 2004-2009, At the time I was unable to recall the exact details of what hours she had worked and promised to locate the documents/pay slips. I managed to find her P60's tax certificates, which showed she never earned enough money in any of the years in question to pay either tax or national insurance, I sent these documents to the DWP, and believed that was the end of the matter. However today I received a letter from the DWP Debt Management (Letter DM15) advising me that an overpayment of £18.862.00 had been made and informing me that I had provided them with incorrect information. They are claiming that I failed to inform them of my wife's part time employment, even though I have sent them a copy of the letter that did advise then of my wife's part time employment, name and address of her employer, hourly rate of pay. My question is how on earth will I ever repay this amount, we have no savings, and survive on income support and DLA, my wife no longer works, how much will they want me to pay back per week, and will they try to prosecute me, despite the fact that I have sent them proof of my wife earnings that I did inform them when she started work. What advice can anyone give me as what I should do next. Sorry for the long post.

[CleverClogs]

Re: Hello to all

I can only suggest that you contact your MP and get the bugger to work for you for a change.

Were your wife's earnings paid into a bank account? If they were, she should send a Subject Access Request (under section 7 - link - of the Data Protection Act 1998) together with a cheque or Postal Order for the maximum statutory fee of £10 to the Data Controller of the bank. I believe that HMRC requires banks to retain records for 12 years.

What you would require, of course, would be details of payments into the account(s) between 2004 and 2009.

[charitynjw]

Re: Hello to all

Hi lorsato & welcome.

As far as I know, overpayments of this type can only be recovered by DWP if you had misrepresented your claim.

There was a recent Supreme Court test case on this.The Child Poverty Action Group v Secretary of State for Work and Pensions [2010] UKSC 54.

From JustCite http://www.justcite.com/Document/d7jsrUrxA0LxsKjIo2yZm2qtm2WIikvNCPnhzPngDP9MBjrMi6 atF/87/r-child-poverty-action-group-v-secretary-of-state-for-work-and


Recovery of overpaid social security benefit awards where overpayment due to calculation error.
The Supreme Court handed down judgment in the case of The Child Poverty Action Group v Secretary of State for Work and Pensions [2010] UKSC 54 on the 8th December 2010. The case concerned the overpayment of social security benefit awards due to an official error of calculation. Whilst in other circumstances it is established that both common law and section 71 of the Social Security Administration Act 1992 (the Act) can be used to recover overpaid sums, the present appeal concerned the question of whether section 71 was the exclusive means of recovery.
Section 71 allows for payment recovery where a misrepresentation or non-disclosure of a material fact by a claimant has occurred. Prior to the entry into force of the Social Security Act 1998 (the 1998 Act), calculation was undertaken by the adjudicators; the secretary of state only being responsible for payment of awards.
The respondent had brought the test case challenging the legal basis of letters sent by the appellant indicating a legal right in common law to recover overpayment and seeking declaratory relief. No common law claim had been brought before the courts by the appellant, but approximately £4m was recovered in 2007/8.
Before the High Court, the appellant’s claim was upheld. Allowing the respondent’s appeal, the Court of Appeal found that a benefit falling within section 71(11) of the Act can only be reclaimed under section 71 of that Act.
The Supreme Court considered the statutory scheme. Finding that the scheme under section 71 was carefully conceived, the court determined that it necessarily excluded a claim at common law.
Considering whether the section could be construed as prospectively excluding a right of recovery in common law under a differently framed decision-making scheme, the court dismissed this argument. Changing the identity of the person determining the award, from an adjudicator to the secretary of state in the 1998 Act, but not altering the statutory criteria could not be interpreted as an intention to widen the mechanisms of recovery.
Examining the appellant’s argument that a common law right of recovery existed under restitutionary principles and had not been displaced expressly or by necessary implication by statute, the court reviewed relevant authorities. Decisions including Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2006] UKHL 49 and Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19 were found to demonstrate the test was not one of necessary implication but one of statutory interpretation. Considering the statute, the court found that the existence of a common law right would be incompatible with a statutory regime and the scheme established by section 71 was intended to be exhaustive.
Dismissing the appeal, the Supreme Court upheld the declaratory relief granted by the Court of Appeal.

[charitynjw]

Re: Hello to all

But see also B v The United Kingdom 36571/06 [2012] ECHR 255

http://www.disabilityalliance.org/bvsec.htm

concerning right to recover - the reasonable requirement to report a change of circumstances.

[charitynjw]

Re: Hello to all

This may also help
http://www.direct.gov.uk/en/MoneyTax...ts/DG_10013949

[lorsato]

Re: Hello to all

Thanks for all the advice.

Continuing from my previous post, re income support overpayment, does anyone know the maximum deductions per week that the DWP can make from my benefits?

[Hurricane Puffrose]

Re: Hello to all

Done some digging and it seems the maximum they can take is one third of the benefit, but you can ring them about the amounts and explain you would be in finacial hardship if they did, they can send out an assessment form, no promises but its worth a try!



i also found this
All overpayments are recoverable except where the following applies:

• the overpayment was caused by an official error, and
• the claimant, someone acting on their behalf, or the person to whom payment was made, could not have reasonably been expected to know that an overpayment had occurred

your quote During the years 2004 - 2009 my wife took up casual part time work. I notified the DWP that she had commenced part time work her hourly rate of pay and the maximum hours she could work. seems to fit that bill.

[lorsato]

Re: Hello to all

Thanks Puffrose

Just thought I would update my initial thread.
Been to see a benefit adviser at my local community law centre. Their advice was to ask for the overpayment decision to be looked at again, and then if the same decision is upheld, to appeal.

As I have a copy of the letter that I sent the DWP in March 2005, which they claim they never received, is my proof at least that I did notify them. Even more the benefit office that were dealing with my benefit claim, who I sent the letter to, was closed down in 2006 and all the building demolished, all the benefit claims it was dealing with was transferred to Ireland. So its very likely my letter was lost in transit, which makes it their error.

My biggest concern apart that is from paying back the money, was the possibility of also being prosecuted for the overpayment, based on their belief that I did not inform them of a change in my circumstances (which I did). I have read so many horror stories on-line where they have prosecuted claimants for overpayments, and although certain claimants won their case and were found not guilty, it still meant months and months of anguish for them. I have been assured that as I have not had an interview under caution and an overpayment amount has been already calculated, they will not be seeking prosecution just intent on having me repay. If I can prove its their error, may be successful in getting them to write off the overpayment, or at the very least reduce it.

Many, many thanks for all the advice.