If a benefit authority says it will not recover an overpayment but then goes on to try and do so - can the equitable principle of estoppel apply?

I've read R(SB)4/91 which says "It is well established that in ordinary circumstances there cannot be estoppel against the Crown in relation to matters of this sort ..."

So I ask myself, what are the out-of-the-ordinary circumstances and which matters are not of this sort?

In R(SB)4/91 the claimant was trying to argue that because the DWP had wrongly paid his mortgage interest for a period (the mortgage was to fund a business) they were estopped from refusing to pay any more once they realised their error. Estoppel could not apply because the claimant " is contending is that the estoppel would give him a claim against the Department for benefit to which he would not otherwise be entitled". DWP clearly cannot be estopped from doing something which they are required to do by law, in that case to calculate benefit correctly.

Your case seems to be different. The law does not require DWP to recover overpayments, it simply gives them the power to do so. If they have said that they will not recover an overpayment they are, on the face of it, bound by that, and estoppel should apply in the same way as it would in any other situation, the DWPs status as agents of the Crown being irrelevant.

That assumes of course that the question arises in the contaxt of actually recovering an overpayment, not in the context of whether the overpayment is recoverable in the first place.

Thanks Keith, that's really helpful. I'd almost convinced myself I was a shield and not a sword, but it's good to hear someone agree! I hadn't thought of the duty/discretion angle either - good point.

This smells more like a JR style argument on defeating reasonable expectations. In what form did they say they would initially not recover (letter/verbally etc?)..just wondering about his on an evidential point.

Estoppel applies when person B relies on a declaration by A, which induces B to act in a certain way. A then resiles from that declaration causing B to suffer a detriment.

Cannot remember the dicta of R (SB) 4/91 but estoppel can have application to social security matters. I took a case to commissioners a few years ago. My client had stopped signing on after receiving a decision notice telling her that she was not entitled to JSA as her income exceeded her applicable amount.

The commissioner after setting the decision aside and awarding my client CON/JSA said that the Secretary of State was estopped from declaring that the decision applied to IB/JSA only. The wording of the decision was so broad as to induce my client to believe that she was not entitled to either form of JSA. The Department did not appeal.

Regards
Paul

Verbally, unfortunately. But on the plus side they did say it to me as well and I made a note.

Some of the leading cases in equity and trust law have consistently held that the declaration can be verbal providing that there is clear oral evidence which is sufficient to re-construct the declaration as fact.