DWP decided they've overpaid incapacity benefit for 10 years & want it back !!

AAD75

My Father was medically retired from work since 2003 and has been in receipt of Incapacity Benefit for the majority of those years ...he has also been receiving a Occupational pension for the whole time, which was declared to the DWP right from the start ...they've now said he should not ever have had any money from them, overpayment had occurred & want it back if thats the case ...it runs into many, many thousands which we can ill afford ...we're trying not to panic while they investigate it ...but where do we stand if they decide he shouldn't have had it but it was their mistake ?

shammyjack

Try reading this http://www.legislation.gov.uk/ukpga/1992/5/section/71/enacted

Read section 71 carefully !

Also read this
http://www.cpag.org.uk/content/supreme-court-victory-overpayment-recovery

http://www.disabilityrightsuk.org/child-poverty-action-group-respondent-v-secretary-state-work-and-pensions-appellant-2010

If you can prove you supplied all the information at the correct time and the DWP was solely at fault then you could well have a case that they cannot enforce their request in law !

olias

AAD75 wrote: »

My Father was medically retired from work since 2003 and has been in receipt of Incapacity Benefit for the majority of those years ...he has also been receiving a Occupational pension for the whole time, which was declared to the DWP right from the start ...they've now said he should not ever have had any money from them, overpayment had occurred & want it back if thats the case ...it runs into many, many thousands which we can ill afford ...we're trying not to panic while they investigate it ...but where do we stand if they decide he shouldn't have had it but it was their mistake ?

Do you mind if I ask how much the occupational pension is?

I only ask, as my wife also recieves an occupational pension (<£200pm) and has been on IB (now esa) since 2001 when she was medically retired.

Olias

Richie-from-the-Boro

AAD75 wrote: »

My Father was medically retired from work since 2003 and has been in receipt of Incapacity Benefit for the majority of those years ...he has also been receiving a Occupational pension for the whole time, which was declared to the DWP right from the start ...they've now said he should not ever have had any money from them, overpayment had occurred & want it back if thats the case ...it runs into many, many thousands which we can ill afford ...we're trying not to panic while they investigate it ...but where do we stand if they decide he shouldn't have had it but it was their mistake ?

If 'Green Command' are involved, get professional help, the CAB whilst helpful, are not specialist welfare trained to the level required for this issue. Its sadly the case that even if you can prove your case and produce the 'hard copy' evidence of letters from / to the DWP in '03 - if .. .. they say "we have no record" - they will pursue your dad. Start with the CAB, then get specialist help.

In the final analysis, your dad can't pay back a lump sum, they will deduct 'x' per month for the next 60 years. Care also with the after effects, the HMRC will come looking for tax on the income since '03. Some have sucessfully fought this fight, yours is in the big numbers, it would be cheaper to get a specialist & experienced welfare law solicitor who deals with welfare on a day to day basis.

markmarkmark

olias wrote: »

my wife also recieves an occupational pension (<£200pm) and has been on IB (now esa) since 2001 when she was medically retired.

There might be useful info in my thread here
https://forums.moneysavingexpert.com/discussion/4548105

It might depend on the date, Those continuously on IB since before 6th April 2001 should have their pension disregarded. Those on IB after that date had it reduced if they got over £85 per week gross, so your wife's pension might be under the threshold anyway?

markmarkmark

For the OP I agree with the others. Since 2001 IB was means tested, so your case rests on your having proof you informed the DWP about the pension in 2003, and then having good legal advice about overpayments where the fault lies with DWP administrative error, so the links provided by shammyjack look hopeful. As I learnt myself in a different thread keeping photocopies of all forms sent in is a VERY good idea!

shammyjack

One would have thought that the OP being worried about this DWP reclaim would at least have come back to the thread he or her instigated .

I and others have posted pertinent information , at least keep us in the loop .

I am getting increasingly frustrated at going out of my way to help members who do not have the good manners to reply to initial requests for help, who log on , post , log off and disappear !

olias

While I agree with you up to a point, give them a break. they are new to the forum and only posted at 9am today. Not everyone checks their computer half a dozen times a day.......

Olias

Bryando

shammyjack wrote: »

One would have thought that the OP being worried about this DWP reclaim would at least have come back to the thread he or her instigated .

I and others have posted pertinent information , at least keep us in the loop .

I am getting increasingly frustrated at going out of my way to help members who do not have the good manners to reply to initial requests for help, who log on , post , log off and disappear !

:rotfl:Get off your high horse! If your getting frustrated, don't help. Simples!

Brassedoff

Richie is giving you very sound advice. Please take note and try to act on it. Whilst in normal transactions and agreements you are able to rely on the Statute Of Limitations Act, in the instance of payments from the DWP/HMRC are not covered and there is an inbalance in the system whether it be benefit or tax that are not covered by the six year rule. The tax man can, in certain circumstances still come after you many, many years late.

You say your issue is payments made under an original claim over 10 years ago were made in good faith, yet they failed to take it in to account with respect to the entitlement of the claimant. The entitlement rests with the claimant, yet the calculations rest with the DWP. Something that you can look at later.

The DWP/HMRC will argue that is sends out a change of circumstances notice every year and it is a duty of the claiment who should have been reported to them. If indeed your father forgot to tell them in the first year of the claim, they will argue he had chance in further years of the claim. The term in statue they will use is "There is no good reason for any of the changes to be notified late."

What no one can answer on these forums is the varying set of rules as amended. You have been pointed towards a piece of legislation, but from what I can find in the 10 years of the claim to date, there have been four changes to it and three High/Supreme Court rulings that have then seen further amendments in Paliament.

If you are sure the facts are that the DWP was originally presented were both in good faith and correct, then you need to get the paperwork from the first completed claim. What I mean by that is that there will be the first claim documents. If you don't have it, then apply for it using the terms under section 6 of the Human Right Act 2003 (Rowe and Davis v. United Kingdom), which gives you the legal right to have all documentation the DWP may wish to rely on in pursing your Father.

The DWP did in cases from 2001-2007 use both the remidy presented in the Act (deducted money from benefits) and in Common Law (via the court system) to recover any overpayment. This was used primarily for Tax Credits, but extended to other benefits when they realised they could get away with it. This was outlawed in the High Court and reaffirmed in the Supreme Court, that ruled that s71 and common law recovery is not possible. They can only use the remidy within the Act.

Further on, you will then find you have a situation where the recourse to the overpayment falls on your Father or, other persons, or his estate. That means, should there have been any transfer of any asset he has/had to a third party prior to the above notice, the DWP/HMRC have a legal right to pursue recovery therein.

There is a set of extraneous set of circumstances which may help your Father or anyone faced with a substantial demand from the DWP/HMRC for over payment. When Gordon Brown made the major mistake with the tax credit overpayment from 2000 through to 2007, the DWP demanded repayment without checking the effective hardship, setting an arbitrarily set repayment figure to make. The High Court ruled that providing fraud could be discounted or an aim to receive payment via pecuniary advantage, the DWP can use its discretionary powers to reduce repayment amount from Nil to any other sum. This might be a starting point should the error be on the part of the DWP.

You need expert help. There are several sources you may be able to get it from. To point you in the right direction can you tell us your Fathers age (-/+ 1 year), if he has served for over 5 years in the forces or if he has any type of disability. Or, check your Fathers home insurance policy, he may be covered under the legal cover (I am and are using it in a civil case). This might help with appointing an appropriate Legal Counsel who is experienced in dealing with these type of cases.

Richie-from-the-Boro

Thanks Brassed,

I was waiting for AAD75 to confirm that 'Green Command' was the origin of the form / letter to AAD75's father. The 'official error' rule argued by shammyjack is, even with professional help, notoriously difficult to prove and is always negated by the 'duty to disclose'. As stated earlier if you have a meticulously documented hard copy trail of 10 year old dated evidence, evidence even on DWP letter-headed paper merely saying "we have no record" is sufficient to defeat even the best amateur attempt at the "official error" defence.

The conditions that must usually be satisfied for an overpayment to be recoverable are that:

There was a misrepresentation, or failure to disclose, a material fact, and;
The overpayment occurred as a result of that misrepresentation or failure to disclose; and
The original decision awarding benefit has been changed.

The misrepresentation or failure to disclose does not need to have been purposeful. For example, if someone did not report a source of income simply because they did not think it mattered, any resulting overpayment would still be recoverable. However, if the overpayment was the result of official error, where all relevant information was disclosed to the DWP in the appropriate manner and at the appropriate time, it would not be recoverable under these provisions.

If a decision to recover an overpayment is made, an individual has the right to ask for the written reasons, and the decision can be appealed in the usual way.

Now AAD75, should start with the CAB or equivalent, regardless of how little money they have they should invest in professional help. If they are lucky and the CAB have a full time paid welfri use him / her whilst simultaneously finding and pricing a paid for pro - what I've already said is sufficient so I'll leave this thread to others. Best of luck to AAD75's AP.