I have chatted with a couple of people and we don't think that the DWP can run this one: they are saying that my client stills owes an overpayment even though it is not receverable under S71. The say that this is because of the common law (I presume unjust enrichment). THe local law centre said that there was a case that the DWP cannot do this so I have told the client to stand firm. I told her not to have contact with the DWP about instalments as this would set up contractual liability to make the repayments.

The law centre wsaid there was case law to back this up but could not remember the citation or the source of the info?

Anyone got a clue? Similair situation?

As a starting point page 1081 of CPAG is helpful.

there's an article on common law recovery in a 2002 issue of the adviser ... with case references and stuff .... do you have a copy? (issue 92, july/august 2002)

if not, we could probably scan it in (assume CA won't mind with it being a 4 year old issue?)

A claim for unjust enrichment can be defeated if the recipient of the money can show that they genuinely believed they were entitled to it and have spent it. Or the claim can be partially defeated if they have spent part of it.

Guess what...issues 90,91, 93 and 94 are all in our library so please would you scan it for me, Thanks

Tony

here you go ....

Overpayments of benefit and the common law - Conrad Haley suggests potential challenges to common law recovery of benefit.

.... Courtesy of the adviser

Decisive case law is Steele -v- Birmingham City Council (CA) 16.12.05. Available here:
http://www.hmcourts-service.gov.uk/judgmentsfiles/j4003/steele_v_bcc_1205.htm

This was actually a bankruptcy case and decided that overpayments occurring before bankruptcy, but where the recoverability decision was after bankruptcy, were not a bankruptcy debt and hence were recoverable form the bankrupt. One argument for the claimant was that the 'common law right to recovery' existed prior to bankruptcy and created a bankruptcy debt. See para.16

"Mr Stagg has advanced an alternative submission in relation to the principal question. He says that Mr Steele was under a common law obligation to make repayment of the overpaid benefit by way of restitution as soon as he was paid it. Accordingly, Mr Stagg submits that Mr Steele was under an "obligation incurred before the commencement of the bankruptcy" within section 382(1)(b) of the 1986 Act. This submission was based on a misunderstanding of something which was said by myself (Millet LJ expressed himself in similar terms) in Chief Adjudication Officer v Sherriff (4th May 1995) Ref CIF/545/1992. The main question in that case was whether the claimant had had the necessary mental capacity to make a claim. At p.5 I said:
"The claim and the misrepresentation being indivisible, if the claimant lacked the capacity to make a misrepresentation, she lacked the capacity to make the claim. In that event benefit was paid to her in the mistaken belief that a claim that had not been made had been made and, there being no power to pay without a claim, is recoverable by the Secretary of State, not under section <71(1)> but on ordinary principles of restitution."

Millet LJ spoke to the same effect at p.7. It is clear that our observations were directed simply to the case where the benefit is paid without a claim having been made. Once a claim is made, the machinery of section 71 is invoked and there is no room for recovery at common law, whether by way of restitution or otherwise. Mr Stagg's alternative submission must be rejected."

I have see recent letters from Debt Management Centres which no longer refer to 'common law right to recovery'; instead they suggest that "you may want to repay this amount". Don't think these need any reply.


Richard Atkinson
Senior Adviser
Wirral Welfare Rights Unit

more on the steele case @

Recovery of overpayments from those discharged from bankruptcy: New HB guidance following Court of Appeal\'s judgment in Steele

Thanks people

Paul Stagg's "Overpayments and recovery of social security benefit" (although old) does have a good chapter on recovery under the common law. I would start there.

CPAG WB Handbook (page 1081) suggests that the rules for recovery in sec 71 of SSAA 1992 could be argued to act so as to prevent recovery in common law (eg the common law is ousted by the provision of a specific scheme for recovery etc). They also suggest that challenging the DWP on this point usually means they give up and go away.

Martin.

grrrr- just realised there were about 10 replies to this thread after I had posted the above

Just ignore me.... nothing to see here.