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I'd be grateful for any thoughts on the following scenario - it's probably not that uncommon, but easily overlooked in IS/ibJSA/PCGC overpayments unless one asks other questions of the client. It's worth looking out for in cases involving lone parents:
Client is overpaid IS and is not entitled to any IS (assume for the purposes of this post, that there are no issues concerning entitlement, defective decision making or accuracy or recoverability of the amount of IS overpaid).
During the period of an IS award client's ex-partner has made regular child maintenance payments to CSA under s 74A Social Security Administration Act 1992 which allows for such payments specifically when the parent with care is on IS, etc.
So DWP have already recovered an amount of IS which equivalent to the payments made to the CSA. After ending of the IS award, payments by ex partner are made direct to client by CSA.
DWP issue an OP decision for whole of the IS overpaid, even though actual net expenditure has been the difference between the amount of IS paid to client and the payments made by ex-partner to CSA
I am arguing that:
a) DWP should use discretion to waive recovery of an amount equivalent to the CSA payments, otherwise DWP is being paid twice - one via the CSA and again via the repaid IS. Matter is with the ICE. I think the scenario is easily distinguishable from Larusai as that case concerned notional payments by DWP/HMRC, not actual money being paid to or from DWP.
b) Appealing and arguing that s71(1) SSA Act refers to "payment" made by DWP being recoverable. In a case where CSA payments have been made to DWP, this is ambiguous and so "payment" must mean "net payment" (ie the IS minus the CSA payments).
Any thoughts? I can't find any caselaw on this point.
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