10k UC overpayment

Newcad

Yamor said:

It is impossible to have an "overpayment" and "underpayment" at the same time on the same award of benefit.

Whilst that is correct, - in practice you have to add a qualifer for UC.

UC payments are made up of different Elements and so different entitlements.
(In effect different benefits all paid as one, just like the advertising says).

That means that a change which causes an incorrect payment of one element may also cause a corresponding incorect payment of another element, one may be an overpayment and one may be an underpayment.
It happens, and is seen, all the time.

Currently when that happens the way the UC system works means that it can't/doesn't automatically offset the one against the other, and so notifies them seperately one as an overparment the other as an underpayment.
Any offsetting has to be dome manually, and that's discretionary so they usualy don't do it.
(So DWP Debt Management will collect the overpayment, and UC will pay the underpayment).
That is being looked at to see if/where/how they can change the system to do any such offsetting better.

So whilst technically they are different elements/entitlements the claimant just sees both overpayment and underpayment of their UC at the same time.
Or sometimes (often) they only see one (the overpayment) and not the other (the underpayment), which is what is happening here.

In this particular case there is an overpayment of UC-HE at one address, and so there is also a corresponding underpayment of UC-HE at a different address.
Both are entitlements to UC-HE, but they are different entitlements to UC-HE.

The claimant has been notified of the overpayment for one address, but not yet notified of the underpayment for the other address (and so needs to push them about it).

In the end it's administration and getting the records right, ie. records about just what is/has been paid for what, but it can be bloody confusing until you get your head around it, and it can cause unwanted hiccups and delays in payments.

mybestattempt

 
Would I be correct in my thinking that the "underpayment" is a notional amount and given the amount "overpaid" is what the OP would have been entitled to if she had notified the move at the time, thus the notional "underpayment" equates in amount to the overpayment?

If so, what right of appeal is there against a notional "underpayment" and the DWP refusal to exercise discretion to offset it against the overpayment?

Newcad

No there is nothing 'notional' about it. (But yes they will/should be the same amount).

The OP was not entitled to UC-HE for that address so it was simply an overpayment for that address.
The OP freely admits that she wasn't living there so the decision is correct and there is nothing to appeal against.

The OP was entitled to UC-HE for the address where she was living, but wasn't claiming it because she was claiming for the wrong address.
So that now needs to be pushed for as underpayment.

PS. Just to note that I have also decided that the information about the DA and breakup was simply the background story and what is at issue is just the 2 properties 'up North'.
However the OP hasn't been back for a while to confirm that, I hope that she didn't get overwhelmed by our discussions.

mybestattempt

Newcad said:

No there is nothing 'notional' about it. (But yes they will/should be the same amount).

The OP was not entitled to UC-HE for that address so it was simply an overpayment for that address.
The OP freely admits that she wasn't living there so the decision is correct and there is nothing to appeal against.

The OP was entitled to UC-HE for the address where she was living, but wasn't claiming it because she was claiming for the wrong address.
So that now needs to be pushed for as underpayment.

PS. Just to note that I have also decided that the information about the DA and breakup was simply the background story and what is at issue is just the 2 properties 'up North'.
However the OP hasn't been back for a while to confirm that, I hope that she didn't get overwhelmed by our discussions.

Thanks, I also hope the OP is still reading.

I'm just wondering how you would take forward the underpayment issue? 

Would a decision letter from DWP be required stating there was £0 housing element entitlement (in respect of property B ) from the date of the move to property B up to the date the move was notified and that there is a right for a mandatory review and then appeal against that decision? 

Alternatively, if DWP confirm £x was the entitlement for the same period in respect of property B that should automatically be awarded thus negating the overpayment which relates only to property A?

I'm just trying to understand why, it offsetting is refused, how there is a way around the DM failing to exercise discretion?

Newcad

The DWP have already decided that there was zero entitlement at the first property-following the change of address - hence the overpayment decision/letter.

The DWP have not yet decided/confirmed that that means an identical entitlement arises at the second property. (We know that there should be, almost certainly the DWP know it too). But the OP needs to assert (claim) that entitlement before it can be backpaid.

At the risk of breaking forum rules (again) regarding government/DWP policy.

Expecting the DWP to do things that are in the claimants best interests is somewhat naive, that is not their job, you have to look after yourself

mybestattempt

Thanks, I understand now and hopefully the OP will be able get this sorted soon.

HillStreetBlues

mybestattempt said:

HillStreetBlues said:

sheramber said:

UC state that housing element is only due for a verified property.

Property B was not verified until the OP updated the address and housing element only payable from the date it was verified. 

Can you link to the statute that states that..

Since I last posted I've been trawling through the DWP decision makers guides and related legislation and this is the relevant legislation:

https://www.legislation.gov.uk/uksi/2013/384/regulation/9

The issue I see there is that legislation deals with overpayments, yet the case law supplied by Yamor states it may not cause an overpayment.
So if there is no overpayment, then the overpayment legislation becomes obsolete, that could well be the reason there doesn't seem to be any Case law on it.

HillStreetBlues

mybestattempt said:

I understand the OP has already asked for off setting and DWP refused.

The judge has no discretion in this matter. The legislation is clear that only DWP can exercise discretion to off set.

A Judge can and indeed should ignore any legislation that is unlawful or irrational, or is incorrectly drafted.
So a Judge could rule giving the Secretary of State sole discretion without any guidance on how a decision is made is irrational.
Person A could be treated completely differently to person B although the situation is exactly the same, that on the bases of law could seem irrational.

kaMelo

HillStreetBlues said:

mybestattempt said:

I understand the OP has already asked for off setting and DWP refused.

The judge has no discretion in this matter. The legislation is clear that only DWP can exercise discretion to off set.

A Judge can and indeed should ignore any legislation that is unlawful or irrational, or is incorrectly drafted.
So a Judge could rule giving the Secretary of State sole discretion without any guidance on how a decision is made is irrational.
Person A could be treated completely differently to person B although the situation is exactly the same, that on the bases of law could seem irrational.

For fear of derailing the thread, that statement is just plain wrong. A judge can interpret but cannot simply ignore legislation nor decide it's unlawful or irrational, legislation by definition is the law even if it is irrational or poorly written. Legislation can of course be challenged via a judicial review but even if the review finds against the Government the judiciary does not have the power to set that legislation aside, it can only tell Government and Parliament to think again. It is then for the Government and Parliament to decide what to do.

Danien

mybestattempt said:

 
Would I be correct in my thinking that the "underpayment" is a notional amount and given the amount "overpaid" is what the OP would have been entitled to if she had notified the move at the time, thus the notional "underpayment" equates in amount to the overpayment?

If so, what right of appeal is there against a notional "underpayment" and the DWP refusal to exercise discretion to offset it against the overpayment?

Literally what I said in a post you shot down. There are two issues overpayment and entitlement from move in date to change of address notification at new address.