I'm seeing a number of cases where it appears there has been an overpayment of DLA which looks like it would be recoverable, client is also due arrears of DLA for some reason, and the overpayment is taken from the arrears before the client gets any notification of the overpayment decision. Impossible to check whether amount recovered is correct because no indication of how much the o/p is/was/will be.

My reading of the regs is that no recovery, even from arrears payments due, can be done before decisions have been taken on overpayment and recovery. Am I right?

Is anyone else seeing this sort of thing happening?

I haven't seen any cases like these, but I agree with your assessment. Until such time as a decision is made that 1)the award has been reviewed, 2)there has been an overpayment and 3)the cause of the overpayment is failure to disclose or misrep, there is no overpayment to be recovered. I'm working off off the top of my head, but the decision in question now is the one that determines the amount of money to be paid. I don't think that'll be an appealable decision so maybe the threat of JR will prompt DBC into paying up or doing the revision for the overpayment.

If the overpayment is caused by the wrong amount of an interim payment, it can be recovered automatically (see regs 3-5 and esp reg 6 payment on account regs).

Thanks - even if not appealable it's still revisable though, I think?

you describe recovery being effected without any legal authority. a recoverable overpayment decision should precede any recovery. (overpayments which are not the recoverable type, eg duplicate payments of benefit, cannot be recovered other than voluntarily, or by court order.)

reg. 13 of the Payments on Account regs. offers limited scope for offsetting (reg. 5) _in the calculation of_ the overpayment. In practice, arrears falling due in the same period as the overpayment may be offset against it, and i've seen this in IS overpayments, but am struggling to imagine that it could arise in a DLA overpayment. The offset in those cases is part of the overpayment calculation and decision itself - the period and amount of offset should be given in the text of the decision. (the draft model overpayment decisions include the options for offsetting, so there is no excuse for missing it out.) This is an appealable decision. Maybe more relevant to your case is reg. 6 which says that no amount may be offset which has been determined to be a recoverable overpayment.

your client is entitled to official decisions notifying awards, disallowances, and overpayments, and needs them to be able to keep track of her financial affairs, and exercise her rights as she sees fit. your DBC has no grounds for believing it can calculate an overpayment and carry out a recovery without formal reference to the claimant. if their salaries department treated them in the same way, i doubt they would have any difficulty understanding that they have abused their powers.

your client has appeal rights against overpayment decisions, and she has been deprived of them by actions which depart from official instructions. hopefully, you will be able to get the DBC back on track...

jj

You should lodge an appeal straight away an specify that no overpayment should be recovered until the appeal has been heard. You should also ask for an explanation from them and specify what grounds they had to off set the arrears against the overpayment. Also write into the customer services department and complain that the DM has exceeded his/her powers.

As Tony and JJ have said the DWP have acted unlawfully in recovering an alleged overpayment without reference to section 71(5) of the Admin Act (supersession) and without issuing a properly constructed overpayment decision notice carrying full appeal rights.

If they are refusing to shift I would send a letter before action threatening judicial review and cc it to the DWP legal department at The Adelphi.