Ok, no appeal lies against an overpayment only entitlement but what about an appeal against an official error which itself leads to the overpayment. I've just noticed something and its nagging at me so could any tax credit gurus out there please help me out and if I'm totally gaga then be gentle about it.

Section 21 TCAct 2002 lists those sections which are open to revision in respect of official error
14(1)Initial decisions
15(1)Revised decisions after notifications
16(1)Other revised decisions
18(1)(5)(6)(9)Decisions after final notice
19(3)Power to enquire
20(1)(4)Decisions on Recovery

The Regs resulting are contained in SI2003/692 which states a decision made under the above sections may be revised at any time 5 years after the tax year end to which the decision relates if incorrect because of official error.

So if an official error can be identified against one of the notices from those sections then a revision can be requested outside the 30 day normally prescribed.
(I was specifically thinking of those award letters which show all personal details correct but awards that bear no relation to those details)

Section 38 TC Act lists those decisions which are open to appeal and it includes Section 21-Official Error- as well as those listed above.
Presumably if a Section 21 decision can be got at, then it could be appealed, taken before a Tribunal and the Overpayment Disputes Team could go hang.

The problem would be getting a sect 21 decision. The Official Error Regs say "may" be revised. Does that leave it open for them to just say tough and not consider the official error the way the Overpayments Dispute Team seem to be doing?

I'm no legal guru and I'm hanging myself out to dry on this one but I'm desperate.

If my understanding is correct then I think you have basically identified a potential way of re-opening overpayments outside the absolute time limit for appeals.

I think the tactic for overpayments at present is, apart from using the code of practice to argue they shouldn't recover, to appeal against the final assessment if it appears too low. If that is successful then of course the resultant overpayment will be lower.

If I understand you correctly then I think you're saying you could ask for a revision of that final decision and I do agree that would a be a useful tactic if you cannot argue for a late appeal or like I said you have missed the absolute time limit.

I think if they refused to revise at all then you would be left with Judicial Review of that refusal as the only option.

Hope that helps, let me know if I've completely misunderstood you.

Thats about it but given the range of decisions covered by the Official Error Regs it would look that other decisions apart from a final decision could be attacked. One of the biggest headaches we see with TC is the underlying reasons for overpayments being lost given the long periods over which they can be recovered. So, decision states £3600 TC instead of £547.5 for Income of £39000 (Real case)for couple with one child. First award letter shows everything correct circs, income. Year later the IR do the dirty and ask for £3000 back. Official error regs would seem to allow that initial award to be contested outside of a 30 day limit. I need to see which TC602 (A-Z)award letters match up to the sections in reg 21.

My head is still trying to get round this but its something to do that stops me banging my head on the desk. The official error regs state in paragraph 3 that revision may take place in "favour of the person or persons to whom it relates". Does asking for an official error revision in the example above do anything more than just show the entitlement should have been lower.

I need to have a nap

Right, so you're saying that we could challenge the INITIAL award? How would that help? That wouldn't alter the fact that they have been overpaid. Obviously appealing against the final award wouldn't be of any use either but it sounds like a classic code of practice case to me.

Like I said at the beginning of this I'm no legal or tax credit guru but when you see a straw you clutch at it, especially where Tax Credits are concerned. There's still something about the Official Error regs that leaves a bad taste in my mouth. Maybe its because I'm paranoid since I knew they were out to get me!

The purpose of the official error regs was to allow extended arrears to be awarded when the cause of the overpayment was an official error, so we are talking about underpayments. It may be useful as a kind of "set off" device to mitigate against the amount of an overpayment. It is however very clear that the IR never intended it to be used a s a backdoor way of challenging recoverability.

Having said that, COP 26 says offical mistakes that are coupled to a lack of claimant knowledge, may be a way of persuading the IR not to recover. Presumably, any case law that flows from fights over reg 21, may help set or suggest the context for deciding recoverability, at least in part.

Unfortunately, many overpayments are not down to official error, as described in reg 21.

Steve