Hi all,

I am going round and round in circles and wish to call on the collective wisdom of Rightsnet

My client claimed Pension Credit on the invitation of the Pensions Service and signed a claim form with the correct amount of savings and investments. When she sent in proof of these the Pensions Service decided that her savings were joint with her husband (who was living in a care home at the time) and made a decision based on half of her actual savings.

She realised the pensions service mistake and notified them upon the death of her husband 18 months after the original award.

The Pensions Service have witheld a number of weeks of the increase of her state pension on the basis that they wish to offset this against the overpayment of Pension Credit. 6 months after the death of her husband, they have not made a revision of the original award of Pension Credit, never mind got to the overpayment decision.

My confusion arises about their ability to withold her pension (and potentially offset it against any overpayment), am I correct in my understanding that they can only offset a maximum of the weekly overpayment of Pension Credit against the arrears of her pension for the period that she has not yet received and therefore must release the remainder of the arrears of her Pension?

Thanks in advance
Simon

Not sure from your posting of the exact facts but, generally, as far as I am aware there is no limit to the maximum deductions from retirement pension although usual practice is to deduct one third per week.

At the risk of teaching my grandmother to suck eggs, there is no recoverable overpayment (Section 74 of the Admin Act-late payments of income-apart) unless there has been a failure to disclose/misrepresentation and benefit was paid that would not have been paid but for the failure/misrepresentation. Overpayments caused by official error are not recoverable.

Until the PC award decision is superseded and a valid o/p recovery decision is sent out then withholding benefit to offset an o/p is unlawful and I would be asking them what the hell they are playing at. Who do they think they are, the Inland Revenue?

Regards
Paul

Thanks for your reply Paul, any attempt at a recovery of the overpayment will be robustly opposed.

I am concerned that they can offset some of the arrears of pension, under the provision in reg 5(1) POR Regs. I suspect that is what they intend to do as they are resisting all attempts to release the arrears of pension because they wish to 'offset' some of the arrears against the benefits already paid.

Simon

I’m confused. Reg 5 covers situations were an award of benefit is in place for a period. Another benefit is awarded in respect of the whole or part of that period. Reg 5 thus allows the DWP to offset benefit already paid for the overlapping period. This provision exists because there could be no recovery under section 71 of the Admin Act because there would have been no failure to disclose or misrepresentation.

Furthermore, Reg 6 of the Payments on Account Regs forbid the use of Reg 5 to offset an amount which has been determined to be a recoverable overpayment under section 71.

If the Department are trying to use sleight of hand by holding off from making an o/p determination to circumvent Reg 6, then I think that they are using Reg 5 in a way not authorised. But, like I said earlier I don’t have all the facts of your client’s case.

Paul

Thanks Paul,

I understand why the provision is there, I just can't find any argument to stop them abusing it and was therefore trying to limit how much they offset.

If it is an official error overpayment, it will not be a recoverable overpayment and will not therefore be excepted by reg 6.

The witheld pension covers the last 7 weeks of her Pension Credit payments and is the result of a supersession to her pension following her husband's death.

I don't believe they are delaying the overpayment decision, the DWP still don't accept that they have made a mistake. They have made repeated requests for proof of her 'extra' savings whilst she provided details and verification in the first instance.

Simon
i think that all that reg 5(1) does is offset the low rate pension on late husband's contributions, against the full arrears of the higher rate pension due on widowhood, so that only the difference between the two rates is paid for the period that the Cat BL pension continued in payment. it's the basic underpinning of arrears calculations...

it gives no authority to withhold benefit entitlement in order to accrue arrears for the purpose of ofsetting against a suspected but not yet determined recoverable overpayment...

i'm a bit confused about the pension credit overpayment - but there is one supersession of her RP award and that is on change of circs on widowhood. There has been no overpayment of her RP, yet they are refusing to convert her pension to the Cat A rate, right? sounds like abuse to me.