I have recently represented a client at an appeal relating to the following:-
Client awarded high mob/ middle care for several years along comes EMP and states that client did not meet criteria for an award and did not at leasts 12 months prior to examination. Sec of State supersedes decision to nil award and also decides that an over payment has been made of several thousand pounds. Appeal submitted and at Tribunal deicion is that the client did not warrant a care comp and never did but the Mob award was reinstated, furthermore due to fact that the decision to award was by an EMP and "change in circumstances" originated from another EMP report the over payment was not recoverable... opinion of 2 doctors etc.
Obviously this meant that there was an amount of money owed in back pay for the High mob as and from the date of the superseded decision. The DBU state that the back dated money will be offset against the overpayment and the appellant is not entitled to this money. Weekly payment were reistated but no back dated money. They use (Payment on Account, etc) Reg 5 (2) case 2 but my interpretation is that within the general note (page772) that this relates to "cases where a subsequent award of one benefit replaces an earlier award of different benefit" This is not a different benefit.
Any views on this interpretation would be welcome or any experiences

Does s.6 of the same reg help? (No amount may be offset which has been determined to be a recoverable overpayment.)

Thanks but no, the overpayment was determined by the Appeal Tribunal as not recoverable.

looking at para 2 and Case 1 in para 2 of reg 5, I can't see that that the application of the reg. is restricted to replacement by a different benefit, contrary to the notes. but i agree that DLA is all one benefit - i don't see that case 2 applies at all.

i'm confused however by your scenario - the revision of the original award of both care and mob to nil was from effective date A and there was an overpayment you say, so i assume payments continued beyond date A to date B, when payments stopped.

On date C, the tribunal overturned the decision which had revised the award to nil. The effect of this is that there was no overpayment of mob component. he is entitled to arrears of mobility component from date A to date C, but has already been paid mobility component from date A to date B. Those payments already made on the revoked award, imo should be treated as paid on account of the subsequenbt award by the tribunal. he is still entitled to the arrears of mob. from date B to date C. but not from date A to B.

the tribunal's decision also meant that there was an overpayment of the care component from date A to date B, but it is not recoverable. since payments stopped at date B, the arrears of mobility component due in the period between dates B and C, imo, cannot be affected by the overpayment of care component in the period from date A to date B. this is because para 1 states that "any sum paid in respect of a period covered by a subsequent determination...shall be offset against arears...", and no sum was paid after date B, therefore no offset against arrears due from date B onwards can be made.

clear as mud?

i suspect that what they have done is looked at the whole amount due for period A to C, looked at what has been paid, and deducted one from t'other, leaving nil. i believe they can only legitimately do this in the period A to B.

jj