Old IS overpayment-urgent

My understanding is that, if it is the first time - i.e. there has been no payment or acknowlegement of the debt - then it is covered by the Statute of Limitations as more than 6 years have passed.  The exception is that they can recover form any ongoing benefit payments (& I think, but am not sure, that this includes the State Pension).

Yep, thats what I’d figured from what I have read. Thanks for the 2nd opinion.

If this is the first time the overpayment was notified, then the time limit for appeal has not expired.

You could easily appeal this one if there has been no notification of a change in entitlement to IS (ie no notification of a valid revision or supersession)

S71(5) of the Administration Act provides:

(5) Except where regulations otherwise provide, an amount shall not berecoverable under ... regulations under subsection (4) above unless–
(a) the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under section 9 or superseded under section 10 of the Social Security Act 1998]; and
(b) it has been determined on the appeal or [under that section] that the amount is so recoverable

If the overpayment goes back to 1998, there will be a number of decisions that must be revised given that the applcable amounts are uprated every year.

The Limitation Act only becomes relevant once the adjudication process is complete [see R(SB)5/91]

This overpayment will only be covered by the Limitations Act if 6 years has passed since the final decision was made relating to the overpayment. So if DWP have only just decided that there has been an overpayment then the LA won’t be relevant in this case but it may be that it can be appealled on other grounds, as suggested above.
Good leaflet here when considering the Limitations Act:

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=25_liability_for_debts_and_the_limitation_act

Following Joseph v Newham Borough Council, where the court decided that the Limitation Act applied to deductions from ongoing housing benefit payments then it is, in my view, arguable that this could also apply to deductions from DWP benefits.  This is because sections 75 and 71 of the Admin Act use similar expressions, i.e. “this section”, “any amount” and “any payment”.  I don’t know if anyone has tried this yet.

http://www.bailii.org/ew/cases/EWHC/Admin/2009/2983.html

However, there is some disagreement whether the Judge in that case got it right in the light of conflicting case law.  Consequently, the DWP is likely to argue that Joseph should not be followed.

http://www.rightsnet.org.uk/forums/viewthread/227/

As to the courts.  The Limitation Act is irrelevant for section 71 overpayments (overpayments as a consequence of failure to disclose or misrepresentation) as the Supreme Court has decided that the common law remedy of court action is not open to the DWP for these overpayments as section 71 was intended to be an exhaustive route to recovery.

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2009_0202_Judgment.pdf

As to deductions from benefits I’d forgotten about this.  Section 108 of the Welfare Reform Act 2012:

108 Application of Limitation Act 1980

(1)Section 38 of the Limitation Act 1980 (interpretation) is amended as follows.

(2)In subsection (1), in the definition of “action”, at the end there is inserted “(and see subsection (11) below)”.

(3)At the end there is inserted—

“(11)References in this Act to an action do not include any method of recovery of a sum recoverable under—
(a)Part 3 of the Social Security Administration Act 1992,
(b)section 127(c) of the Social Security Contributions and Benefits Act 1992, or
(c)Part 1 of the Tax Credits Act 2002,
other than a proceeding in a court of law.”

(4)The amendments made by this section have effect as if they had come into force at the same time as section 38 of the Limitation Act 1980, except for the purposes of proceedings brought before the coming into force of this section.

On recovery through the courts then CPAG v DWP is still good law.

nevip

Could you please clarify for me?  As I see it, having looked at the CPAG case, the position is:

1.  If an overpayment comes within S71 (misrepresentation or failure to disclose) it can be recovered by deduction from benefits at any time - i.e. the 6 year Limitation Act doesn’t apply.

2.  There is no common law remedy for any overpayment.

3.  There is no remedy for an official error overpayment (i.e. one not coming within S71).

Am I right?  If so, it leaves me with questions:

a)  Can an overpayment coming within S71 be recovered by Court action if it is started within the 6 year Limitation Act period?  I realise the CPAG decision emphasises that S71 is an exhaustive route, but that seems to be in an argument as to whether there is a common law alternative.  I’m not at all sure, but I wonder whether there is an argument that going to Court & getting a CCJ within the 6 years is a contractual remedy & not a common law one.

b)  Similarly, can an official error overpayment be recovered through a CCJ within the 6 years?

If the answers to a) & b) are NO then it appears there is no way at all to recover any overpayments other than by deduction for those coming within S71.  This is not what I thought the position was!

Anything you can do to shine light on my darkness would be appreciated!

Sorry.  I confused myself on the point.  Section 71 overpayments can be recovered through the courts (s71(10)).  The six year time limit applies.  Official error overpayments cannot.

For the sake of completeness.

Broadly, in countries whose legal systems are based on the common law tradition the common law acts where statute is silent.  The court rejected the view in CPAG’s case that section 71 ousted the common law jurisdiction on overpayments that were not covered by s71.  This was initially my view also.  The Court of Appeal and the Supreme Court in beautifully reasoned argument overturned the lower court’s decision on this point deciding that s71 was an exhaustive regime for recovery of all overpayments based on an award.  Overpayments not based on an award such as duplicate payments, can still be pursued through the courts under the common law of restitution.  However, there is a defence to this and that is where the claimant genuinely believes that he was entitled to the extra money and has spent it.  That could be a difficult defence to sustain in many cases.

When did S108 WRA come into force?

s108 came into force on 8/3/12 and has retrospective effect “except for the purposes of proceedings brought before the coming into force of this section”.

nevip - 21 January 2013 10:38 AM

s108 came into force on 8/3/12 and has retrospective effect “except for the purposes of proceedings brought before the coming into force of this section”.

Hi Nevip
Do you have the SI number for this as I can’t find it
Thanks

There is no SI number as it didn’t require secondary legislation to enact it.  It was enacted directly by primary legislation and came into force, by virtue of s150 of the Act, on the day the Act received royal assent.  A link to the Act, here.

http://www.legislation.gov.uk/ukpga/2012/5/contents