One of the reservations being expressed about JR as a remedy against overpayment action is that there is no decision to challenge.

Surely there is a decision. Section 28(1) of the Act (end of year recoveries), and section 28(5) (likely overpayments), both have the word "may" in them. For the IR to take recovery action, they must decide to do it (otherwise we have fettered discretion, an alternative JR route). So if the IR notifies that an overpayment is to be recovered, and/or starts recovery of a likely overpayment, am I not right in suggesting that within these decisions, lies the decision to recover?

It's at times like these that I wish I have studied law (what good has that CSE in technical drawing ever been?)

Secondly, does anyone know if the IR keeps data on the number of recoverable decisons it decides not to recover? You would have thought so if they ever needed to protect themselves against challenges around fettering discretion. In the old days, I seem to remember MPs asking questions about the success rates for crisis loans.

Steve

Steve

You don' need a decision to use the remedy of JR. JR is a remedy available against a decision or action/lack of action of a public authority.

For example, an order of mandamus (now an enforcement order) is available to force a public authority to carry out its statutory functions (i.e its refusal to make a decision where it is bound to do so).

Likewise, the action of recovery would be amenable to judicial review even where there is no actual overpayment and recovery decision. I would even say that the merits test would be more likely to be met where there is no actual writen decision as the test of fairness would more likely to have been breached.

But yes, I agree with you that the end of year recovery notification would contain the decision within it.

Regards
Paul

The problem is really with appealing rather than judicial review. Theoretically, all overpayments 'may' recovered, as opposed to must, therefore the IR has to use its discretion whether to recover or not. As you say, JR action is appropriate if you can show that the IR fetter their discretion ie have a policy of recovering all o/ps regardless, or if you can establish that the decision to recover is perverse. Its a bit like the situation you're in when you lose a recoverability appeal with IS etc, the DWP still has the discretion not to recover (but I've only ever seen them use it once).

Discretion decisions tend not to be appealable unfortunately. Also there is no concept of recoverability in the legislation so there is nothing to hang a right of appeal on as you say.

I did put up a rather fanciful argument in another thread (can't remember what its called but think its something obvious like Tax Credit appeals) that there may actually be an implied decision on recoverability but no-one else seems able to shed any light on whether its nonsense or not

I understand that the problem is really with establishing caselaw, as apparently every time JR is threatened the IR tend to back down. This is great if you are entitled to Legal Aid but not so good if you're not as JR would be a somewhat empty threat.

I'm not up to scratch on JR but shouldn't it be the case that if a discretion is going to used on an individual case then that cases circumstances should be viewed on its own merits. Shouldn't that mean there's something more on the records for a case than a dismissive entry that "Discretion considered but tough".

The posting from Debbie Crew 13/9/04 seems to suggest that the IR, surprise surprise, have just put together a standard letter to evade any need to look at discretion for any single case. Debbie doesn't say whether those have been through the process of applying to the Overpayments Dispute Team.

Not so long ago I had a case against the CSA and applied for copies of all computor records on the case. The package was really hefty but gave enough detail for a successful claim for compo. Doesn't the same right extend to Tax Credit for a claimant to make a similar application. I think since October of 2003 or was it 2002 theres also been the right to copies of clerical information. And, if telephone conversations are recorded then could those, or transcripts, be requested as well.

And last call, as JR is so expensive is there any way claimants could bunch together to make a joint application.

In reply to the point Semitone raised. I have had 3 clients in the last week who have requested the IR pro forma TC846, so that they can apply to have the recovery waivered in their case.

One of my clients gave up her job and after informing the IR her change in cicumstances she was awarded WTC based on her husbands salary. This award amounted to £40 a week. I feel that this was a reasonable amount and the IR statement confirmed that the amount was correct. (since proved to be wrong) When the form arrives we will need to put a case forward that says it is reasonable to accept that the award was correct. Also, it would cause financial hardship to the family to have to pay back the over payment. Fingers crossed it will work.

Debbie Crew
Health Outreach Worker
CAB

IR pro forma TC846 is also available to download in the 'tax credits guidance' section of rightsnet tookit

The problem with IR form TC 486 is that the questions are confined to those about waiving in official error cases and none of the other grounds that IR say they will use to waive recovery in COP 26 (such as hardship) are asked about. And of course COP 26 offers a limited view of when waiving will be appropriate compared to the wider discretion contained in the legislation, so the option of JR is one we should consider. In the latest CPAG Welfare Rights Bulletin there is an article about use of the IR Adjudicator (including to challenge overpayment recovery). The downside is that a Court may expect the applicant to have used this route before they apply for JR.