New Style ESA overpayment from over 18 months ago.

CFELH

singhini said:

The DWP’s own guidance still says recovery should not normally be pursued where:

The claimant reported the change immediately, and

Relied on written confirmation from the DWP

Where does it state that in the 'DWP Benefit overpayment recovery guide Version 3.40 - March 2025'

https://www.gov.uk/government/publications/benefit-overpayment-recovery-staff-guide/benefit-overpayment-recovery-guide#chapter-2---when-and-from-whom-do-we-seek-recovery

singhini

CFELH said:

singhini said:

The DWP’s own guidance still says recovery should not normally be pursued where:

The claimant reported the change immediately, and

Relied on written confirmation from the DWP

Where does it state that in the 'DWP Benefit overpayment recovery guide Version 3.40 - March 2025'

https://www.gov.uk/government/publications/benefit-overpayment-recovery-staff-guide/benefit-overpayment-recovery-guide#chapter-2---when-and-from-whom-do-we-seek-recovery

Look through chapter 8 (and work through paragraph 8.6) it lists factors to consider when deciding whether to exercise discretion.   Benefit overpayment recovery guide - GOV.UK

"DWP conduct, including statements made by DWP, and the circumstances surrounding how the overpayment arose including any missed opportunities. E.g., evidence to support the debtor’s action or inaction was based on official advice provided by the Department, which they acted on in good faith"

"evidence to support the debtor’s action or inaction was based on official advice … acted on in good faith” ----->  corresponds to "relying on written confirmation from DWP"

The key thing to understand is DWP made the initial mistake, not you. They don’t always know all the rules perfectly themselves, and it’s not your job to prove the law or quote every piece of legislation verbatim. What you need to do is pull out the parts of their own guidance that support your case, that is the parts that show:

They made an error.

You acted in good faith.

They have the power to exercise discretion, for example, by deciding not to recover the overpayment.

Focus on the salient points that clearly back up your position,  things like: you reported the change promptly, you relied on their official advice, and paragraph 8.6 of their own guide says they should take those factors into account when deciding whether to pursue recovery. That’s enough to show it’s really their responsibility to exercise discretion, not yours to prove the law.

They may not listen and push you back but atleast you gave it a fighting chance. 

singhini

Sorry i wanted to write a bit more (but MSE keeps coming up with stupid maintenance messages and not submitting my posts)

In your second post, you mentioned that "there seems to be different views by advisors" I think this is because the system isn’t very smooth: Decision Makers make decisions, while Advisors implement them but don’t actually make the decisions [like the left hand not knowing what the right hand is doing].

As I mentioned before, I would personally submit an MR letter and see what happens, rather than not bothering. You haven’t done anything wrong; you just want them to understand the situation and exercise discretion.
It’s Christmas, and you simply can’t afford to pay it back you don’t have the money. You genuinely thought it was back pay (as you mentioned earlier), and I believe you. Plus you used it for much needed medicine. Theres a cost of living crisis. 

Oh dear oh dear ......... You did nothing wrong and they are going to put you through Financial hardship, negatively effect your health, cause you destress -----> work through the list on paragraph 8.6 and tie some of them into your personal circumstances. 

CFELH

singhini said:

They may not listen and push you back but atleast you gave it a fighting chance. 

Having re-read the letter, it claims 'you did not tell us straight away ' that you had returned to work. The DWP were told by letter on the day my partner returned to work and they acknowledged that letter 10 days later.

Add into that the song and dance it is going to take to have the tax adjustment made for that year, they may as well challenge it.  Had the DWP said in the letter it was their error, then at least it would have been more honest.

I assume going through an MR followed by an appeal will halt any possible recovery action by the DWP?

singhini

I think NO -----> legally they can still try to recover the money even if you escalate it to an appeal.
However, in practical terms i would [hedge a bet] a MR letter slows/pauses it. 

No harm in writing a sentence in your MR letter. Something like: I ask that any recovery action is suspended pending the outcome of my Mandatory Reconsideration. 



You said "Having re-read the letter, it claims 'you did not tell us straight away ' that you had returned to work. The DWP were told by letter on the day my partner returned to work and they acknowledged that letter 10 days later".

Perhaps write something like:
The decision letter states that I ‘did not tell you straight away’ that I had returned to work. This is incorrect. I notified the Department by letter on the day I returned to work, and this was acknowledged by the Department in your letter dated [date], 10 days later.


Apologies for so much italic text -----> MSE website still giving me issues!!!!

singhini

Subject: Request for Mandatory Reconsideration – ESA Overpayment Decision

Dear Sir/Madam,

I am writing to request a Mandatory Reconsideration of the ESA overpayment decision dated [insert date of decision], reference number [insert reference number], which states that I have been overpaid ESA following my return to work.

I dispute this decision on the grounds that the alleged overpayment arose solely due to Departmental error and that I could not reasonably have known that the payments were incorrect.

Background

(1) I claimed new-style ESA for a period in early 2024.

(2) I returned to work in late March 2024 and notified the Department in writing on the day I returned to work.

(3) The Department acknowledged receipt of this notification in its letter dated [insert date], issued approximately ten days later.

(4) In that correspondence, the Department confirmed that my ESA entitlement would end the day before I returned to work.

(5) I have retained copies of all relevant correspondence, including proof of posting and the Department’s written acknowledgement.

Correction of a Factual Error in the Decision

The decision letter states that I “did not tell you straight away” that I had returned to work. This statement is incorrect. I notified the Department by letter on the day I returned to work, and this was acknowledged by the Department in your letter dated [date], issued approximately ten days later.

Reason for Dispute

While I understand that the Department has a discretionary power to recover overpayments of new-style ESA, including those arising from official error, DWP guidance makes clear that recovery should not normally be pursued where the overpayment arose solely due to official error and the claimant could not reasonably have known that the payments were incorrect.

In this case, I notified the Department immediately of my return to work and relied on written confirmation from the Department that my ESA entitlement would end before I resumed employment. I acted entirely in good faith on the basis of that official advice. I therefore could not reasonably have known that any subsequent payments were incorrect.

DWP guidance (Benefit Overpayment Recovery Guide, Version 3.40 March 2025, paragraph 8.6) states that factors relevant to the exercise of discretion include Departmental conduct, including statements made by the Department and the circumstances in which the overpayment arose, particularly where a claimant’s actions or inaction were based on official advice which they acted on in good faith. In this case, I acted entirely in good faith in reliance on the Department’s written confirmation that my ESA entitlement would end before I returned to work. Any overpayment that occurred arose from subsequent Departmental processing or administrative error, and not from any failure, misrepresentation, or omission on my part.

In these circumstances, I ask that the Department exercises its discretion not to pursue recovery, as recovery would be unreasonable and disproportionate given that the overpayment arose solely due to Departmental error.

Additional Consideration – Tax Implications

I would also ask that consideration be given to the unnecessary and avoidable tax complications that recovery would create. Requiring me to navigate a complex tax correction process with HMRC would be disproportionate, particularly where the situation arose entirely due to Departmental error and not through any fault of my own.

I ask that any recovery action is suspended pending the outcome of my Mandatory Reconsideration.

Evidence Provided
(1) Copy of my letter notifying the Department of my return to work

(2) DWP letter acknowledging receipt of that notification and confirming ESA cessation

(3) Proof of posting / recorded delivery slips

For the reasons set out above, I ask that the decision be revised and that recovery of the alleged overpayment is withdrawn.

If the decision is not revised, please provide a full written explanation of the basis for recovery, including how the evidence has been considered and how the Department’s own conduct has been taken into account. If necessary, I will consider referring the matter to the Tribunal Service for independent review.

Please confirm receipt of this Mandatory Reconsideration request and advise me of the next steps.

Yours faithfully

---------------------------------------------------------------------------------------------------------

All im saying is, i would be tempted to put a MR letter in and if they say NO, you have to pay it back then so be it, but atleast you gave it a fighting chance!

PS: Tweak the letter as needed to suit your situation. Review paragraph 8.6 of the DWP Benefit Overpayment Recovery Guide, and if you can demonstrate factors such as hardship, stress, or health issues caused by their error, consider including them in the letter. Linking these points to paragraph 8.6 may strengthen your case for not having to repay the overpayment.

Spoonie_Turtle

CFELH said:

singhini said:

They may not listen and push you back but atleast you gave it a fighting chance. 

I assume going through an MR followed by an appeal will halt any possible recovery action by the DWP?

According to the overpayment recovery guide, if I'm remembering correctly (no brainpower to go reading now) that was the case for legacy benefits but not for new-style and UC.

CFELH

@singhini

A quick question you may have some knowledge of.

Can you request an MR then appeal an overpayment that has already been paid back. If so and you win, will you get the money back. The net cannot answer, nor can experienced advisors.

singhini

CFELH said:

@singhini

A quick question you may have some knowledge of.

Can you request an MR then appeal an overpayment that has already been paid back. If so and you win, will you get the money back. The net cannot answer, nor can experienced advisors.

i thought NO

However See "Benefit Overpayment Recovery Guide" V3.40 March 2025 
Benefit overpayment recovery guide - GOV.UK
Click onto Chapter 4 - Appeals & Disputes and read points 4.26, 4.27 and 4.28  ------> This suggests Yes [if i have understood it correctly]
Infact it looks like both "overpayments" and/or "civil penalties" can be refunded (though you had no civil penalties because you did report a change in your circumstances). 


So lets recap [this is my understanding]: 
1 = DWP made a mistake
2 = DWP wrote to you wanting the overpayment back
3 = You write a MR Letter
4 = They issue you a MR Decision
5 = you not happy and appeal it (i think its form SSCS1) Appeal a social security benefits decision (Notice of appeal): Form SSCS1 - GOV.UK
6 = Tribunal decide:

That there was no overpayment, or

That the overpayment is not recoverable, or

That the amount is less than DWP says

Then any money you have already repaid must be refunded (subject only to offset against other DWP debts, if any)

This would be my understanding but even i'm surprised [and unfamiliar with this guidance]

------------------------------------------------------------------------------------------------------------------

Quick note: i previously suggested you should ask them to temporarily suspend the recovery of the overpayment in your MR Letter -----> read section 4.6 of that first link i.e. the benefit overpayment guide -----> it says "4.6. For Universal Credit, and New Style ESA and JSA overpayments, recovery will not be suspended during the mandatory reconsideration process"  -----> i would still leave the request in the MR Letter

Also read chapter 5 of that document "General" -----> it discusses hardship and to not cause you undue hardship (worth a read). 




 

CFELH

@singhini  Thank you for all the time you've provided in helping with this issue, it really is appreciated.