Mornin' all

On behalf of my client I applied to Debt Centre to waive recovery of an IS overpayment of >£7K. I thought we had a good case but it's been refused with reasons simply being "..carefully considered this case and has decided unfortunately this debt cannot be waived.".

The basis for the overpayment was that client failed to disclose the absent parent gave her the money to top up her IS to the correct level after an RBD had been applied.

I've given them a number of mitigating circs inc health problems and I've supplied GP letter.

It's my opinion their decision is unreasonable.

What's my next step? I'm considering a jr application. At this stage I'm not sure whether we need to seek a full explanation from DC as to precisely how they came to the conclusion it didn't warrant a 'write off'.

Anyone?

Hi Sue

I think that you would be in a far stronger position to argue that the decision was unreasonable if you had a full explaination in front of you. I think you would need to know just how the case was "carefully considered", i.e. were relevant considerations overlooked or were irrelevant considerations taken into account, etc.

Regards
Paul

This is what I thought Paul. Cheers mate. I'm dreading asking though as it's already taken them from April to get back to me (never received, gone to other dept, gone to Leeds, back in DC, on someone's desk, gone to Leeds etc etc etc). It wouldn't be so bad if they hadn't started recovery.

Hello

The debt centre will stop the recovery if the client appeals. You can check out your case and if unwinnable you can withdraw the appeal.
Don't know your decision date. 13 months max time to appeal. See page 1106 CPAG

This is what we did at the beginning but had to withdraw as there were no grounds as she'd had undisclosed income. She'd been given a Reduced Benefit Direction (or is it an RB Decision these days) and the father of the child made up the money to her usual IS level.

We thought she had several very good reasons to support the waiver request including her very poor mental health (backed up by GP). Each one of the factors was probably enough on it's own for them accept a 'write off' would be reasonable in the circumstances. But t'was not to be - an absolute and unconditional NO from DWP. I'm waiting for their explanation but if it takes them as long as long as the waiver application she'll have already have paid it back!

Explanation received from Debt Centre - well it's not really.

In the intial waiver request back in June I gave every detail I could based on the guidleines. I sent in a letter from the GP in which he confirmed the investigation and recovery has led to him prescribing anti-depressants and referring her for counselling and psychotherapy.

They've just said they've assessed the facts put forward by me and the doctor and on the evidence cannot waive recovery. They go on to suggest we provide further evidence including "...confirmation from her doctor that the antidepressants and psychotherpay have not helped her mental conditon and repayment is having a major impact on her health and wellbeing..."


It seems unreasonable that they want further evidence before they'll consider it again.

I'm now at the stage where I think the next step is to ask for counsel's opinion on the merits of a jr application.

What do you think?

Playing devil's advocate for a second.....

What we have here is someone who has acted as the accomplice of a father who has taken the view that the taxpayer, rather than he, should support his child. She's had an RBD in consequence of that complicity, and the absent father has made that loss of IS up to her in order to keep her complicit. She kept the fact of these payments from the DWP which resulted in an overpayment of benefit when the truth eventually did come to light. On what basis is recovery unreasonable?

*Devil's advocate hat off*

I'm not sure how far you'd get with JR when the department haven't closed the door on write-off entirely. Would there have been grounds for a challenge to the original RBD? Did the father put pressure on her or threaten her in order to pursuade her to go along with his avoidance of CSA? Was your client's mental health then (rather than now) such that it might be possible to show she acted irrationally?

There's no denying she's done the dirty deed(s) firstly by not complying and then not disclosing the absent parent paid her to top up her IS. The appeal was withdrawn on that basis. However she only ended up with the same amount of income as if she'd complied in the first place.

The fact that overpayments of benefit are recoverable confers a discretion on the SoS to waive it in some circs. According to administrative law principles each case should be looked at individually. This is what we're challenging. We have loads and loads of background which I don't think they've properly considered it at all.

And yes she's always been somewhat 'unstable' but I'm not sure of irrationality. The GP in his letter for the SoS told them she had previous history of depression and suicidal ideation.

I suspect that refusal to waive recovery is an automatic response. We also have a case in which waiver of recovery of allegedly overpaid IS was refused. The case mentioned in http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=103&topic_id=4413&mesg_id=4413&page=3 finally reached an appeal tribunal and the appeal was disallowed. Interestingly, the decision notice states 'The Secretary of State will need to decide whether the overpayment should be collected as there is clear evidence that MrX was himself entitled to income support and MissY also remained entitled to income support if a joint claim had been made from ...(date).' A SoR is awaited so we don't yet know whether the tribunal even considered Reg 13 of the Payment of Account Regs.

That's interesting Ruth as I have another very similar case so can you let me know how you get on when you've seen the SoR please.