The DWP deliberately lied to a claimant about their rights and unlawfully kept legal guidance secret in order to recover an overpayment of over £8,000 which was entirely due to the DWP’s own mistakes. The High Court has this month prevented the DWP from taking the money back from the mother of two disabled children, but many tens of thousands more claimants may have been hoodwinked in the same way.
The claimant’s disabled son was on an apprenticeship, but the DWP wrongly considered him to be in full-time education and so incorrectly paid the claimant child elements of universal credit.
The judge found that the claimant gave all the information that was asked of her and “took all reasonable steps both to clarify her entitlement and to prevent any UC overpayment by actively querying her entitlement on at least four occasions.”
On each occasion the DWP told her that the award was correct.
Nevertheless the DWP eventually realised its error and attempted to recover the overpayment.
The claimant appealed, but a tribunal agreed that there had been an overpayment, although they also found that the overpayment was solely due to official error and that DWP “repeatedly” miscalculated her entitlement over a prolonged period, in what was a “profound lapse in service”’.
With the help of an advice centre, the claimant asked the DWP in writing to waive recovery of the overpayment, which the DWP has the power to do. She explained that she had two disabled children with autism and ADHD, that her role as their carer meant that she could not work longer hours and that she was already struggling so badly that she was having to use a foodbank.
The DWP didn’t even respond to this request.
The claimant then sent the request again.
This time the DWP said that as she had already been to a tribunal there was no further route to pursue the matter.
The claimant wrote yet again, saying:
“What do you mean there is ‘nothing you can do for me?’ Your own guidance says I can ask for a waiver of my overpayment (see paras 5.83-5.85 of your own benefit overpayment recovery guide) and this route was recommended to me by Mrs S Wiggins, the complaints handler who dealt with my UC complaint. All of this was carefully outlined in my waiver letter and the supporting documents I sent with it. As I have asked you to waive my overpayment, as a public body, you have an obligation to consider, and make a decision on it. Neither me nor my caseworker have received such a decision, why is that?”
Astonishingly, the DWP relied with an outright lie:
“Neither myself or anyone working for Universal Credit can reconsider your overpayment as you have exhausted all appeal routes with us. The legislation you have quoted does not apply directly to the processes that we have here.”
The claimant, with the help of the Public Law Project, launched a judicial review of this decision in the High Court.
One of the findings the judge made was that: “Fortunately, the claimant had the assistance of Public Law Project (‘PLP’), and so she did not accept this manifestly unlawful statement of the position.”
In lay person’s speak, ‘manifestly unlawful statement of the position’ could reasonably be translated as ‘barefaced lie’.
One of the grounds on which the claimant appealed was that the DWP had kept secret its detailed policy on when an overpayment should be waived.
The judge held that the failure of the DWP to publish the Decision Makers Guide to Waiver was unlawful because a claimant would not be able to fully understand the DWP’s policy on waiving overpayments.
The DWP agreed to publish the Decision Makers Guide to Waiver as part of its Benefits Overpayment Recovery Guide, see the link at the end of this article.
The judge also found that the claimant had reasonably relied on the DWP’s repeated reassurances that she was entitled to the payments to her detriment by spending money she would later be asked to repay. If she had known the true position she would have acted differently, possibly by finding a different course for her son or seeking to claim benefits for her son in his own right.
Accordingly, the judge found that the DWP’s refusal to waive the overpayment was unlawful and breached the claimant’s legitimate expectations and so the DWP could no longer recover the £8,000 it had wrongly paid.
In the course of her deliberations, the judge also looked at statistics on overpayments and recovery by the DWP.
She found that from 1 April to 2020 31 March 2021 337,000 UC claimants were asked to repay overpayments whose cause was error by the DWP. The total value of those overpayments was £228 million.
Amazingly, the DWP claims that just 47 claimants asked for their overpayments to be waived in the whole of 2020 and just 7 of those requests were granted.
As the judge commented: “If the claimant’s experience of twice having her request for waiver rebuffed without consideration is not unique to her, the number of requests in fact made may exceed the number recorded . . .”
In fact, many thousands may have requested a waiver and been ignored, whilst many thousands more may have had no idea that they even had the right to ask. Undoubtedly, the test for waiving an overpayment is a hard one to pass, but the DWP have a legal duty to allow claimants to have their request properly considered.
Instead, the department continues to push struggling claimants even deeper into poverty, with only a very rare court case like this one shining a light on their dishonest and unlawful tactics
You can download the full decision from this link.
You can read the chapter on discretion and waiver in the DWP’s Benefit overpayment recovery guide here
