Having represented my client at a fraud hearing 18 months ago (at which it was discovered that there had been no fraud or failure to disclose and that they had in fact had all the information they needed from the start but had failed to act on it)said client now has had a letter asking him to repay the overpayment.

I was just about to put pen to paper (or fingers to keyboard) to write a letter to the Debt Collection lot pointing a few things out to them, when I thought I'd better re-read the letter. It says that they made a mistake, but would recover the overpaid monies under common law. I've never come across this threat before - I'd always been under the impression that if the fault lay with the DWP then the overpayment wasn't recoverable. And of course, with this letter there is no right of appeal.

Has any one else come across this? And more to the point, got round it?

Cheers

See below for an extract from the CPAG webpage on this very subject .....

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DWP – Overpayment recovery at common law – CO/4211/2007

We have been in correspondence with the DWP solicitors about this topic. They have told us that in their view they have the power to recover an overpayment under the common law in addition to their powers under section 71 SSAA 1992. We have been advised by Richard Drabble QC that this is arguably wrong. Proceedings for judicial review were issued on 23/5/07. We are awaiting a decision on permission from the court. We understand there are currently long delays in the Administrative Court but expect to hear some time over the Autumn.

As part of the JR action it will be useful to gather evidence of the prevalence of the DMC practice of seeking recovery in official error cases. If you have any examples please email [email protected]

CPAG would advise claimants/advisers where recovery is being sought on the above basis to refuse to pay the money on the basis that the demand is unlawful (of course the claimant can always choose if he or she so wishes to pay the money back voluntarily), and refer to our JR proceedings where necessary. If the DWP then sue for the money in the county court then the claim could be defended on the same basis (i.e. that the demand for repayment is unlawful - as long as it is an official error case), and the county court should be asked to stay/adjourn the proceedings until CPAG's JR has been concluded.

Blimey Mike, you're quick off the mark.

Thank you very much for that, it's very helpful. I will ontinue with my letter...

The CPAG challenge is based on the argument that the common law right of recovery has been ousted by the right given under statute.

Irrespective of the merits of that argument (or if that argument were to fail) then, generally, a claim for restitution based on unjust enrichment may be defeated if the person can show that they thought that they were entitled to the money and have spent it.

My experience is that if you say can't/won't repay they do not continue to pursue it.