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DWP legacy benefit overpayments

This fact sheet covers England & WalesYou will need different advice if you live in Scotland.

This fact sheet explains what a Department for Work and Pensions (DWP) legacy benefit overpayment is and the possible ways to deal with an overpayment.

Use this fact sheet to:

  • understand why you may have a benefit overpayment;
  • know how you may be able to appeal an incorrect benefit overpayment decision;
  • see what options you have to deal with a benefit overpayment; and
  • know how the overpayment may be recovered.

What are DWP legacy benefit overpayments

A benefit overpayment is money owed as a result of being paid too much benefit. DWP legacy benefit overpayments will be owed to and collected by the Department for Work and Pensions (DWP).

Overpayments may occur for a variety of reasons, for example:

  • The benefits office making a mistake.
  • The information you gave may have been incorrect.
  • You didn’t inform the benefit office of a change in circumstance which would have meant your benefit would reduce or stop.

Legacy benefits are benefits which are being phased out by the Government and being replaced by Universal Credit. This would include:

  • Income Support;
  • Jobseeker's Allowance (JSA) (but not New Style JSA);
  • Employment and Support Allowance (ESA) (but not New Style ESA);
  • Personal Independence Payment (PIP); and
  • Disability Living Allowance (DLA).

The overpayment would need to be repaid if you misrepresented or did not disclose information, even if it wasn’t your fault. You should not be asked to repay an overpayment caused by a DWP official error.

Knowing whether you were overpaid or not can be difficult to work out. If you do not have enough information to be sure that you were overpaid, you can ask for a written statement of the reasons for the overpayment. You must do this within one month of the overpayment decision. If you are still unsure if the money is owed, you should contact a benefit adviser to help you.

If you think you were entitled to the amount received, you can appeal the overpayment decision. See the Mandatory reconsideration section.

Mandatory reconsideration

You can appeal against a decision that you have been overpaid, or the amount of the overpayment by asking for a mandatory reconsideration, the request should be made within one month of being sent or given the decision. If you have requested a statement of reasons for the overpayment, the period of time you have to apply for a mandatory reconsideration will be extended to:

  • one month and 14 days of the being sent or given the decision, if the statement is provided within one month: or
  • 14 days of receiving the statement if it has not been provided within a one month period.

You can send a mandatory reconsideration request form from the GOV.UK website to the address on the decision letter. This can also be done for late applications.

After making a mandatory reconsideration request, you will receive a mandatory reconsideration notice which will tell you the outcome. If you believe the decision the DWP has made is incorrect, you can appeal to the First-tier tribunal. See the First-tier tribunal section below.

The DWP will usually continue trying to collect the debt during the mandatory reconsideration process.

Late mandatory reconsideration requests

If you are outside the one month application period, you can still apply for a mandatory reconsideration within 13 months of being notified about the decision. You need to show that there were special circumstances which meant you couldn’t apply in time.

If a late request within 13 months is refused, it will still count as a mandatory reconsideration request so you can then appeal to the First-tier tribunal (see First-tier tribunal section below).

If it has been more than 13 months, you’ll need to show that the DWP have made a mistake to be able to apply for a mandatory reconsideration. This could be that they got the law wrong or overlooked some evidence you may have sent them. This is called a ‘specific grounds revision'. You should speak to a benefits adviser to make sure you have grounds to make a request after 13 months.

If a late request after 13 months is refused, the DWP may say that it hasn’t counted as a mandatory reconsideration request and so you have no right to appeal to the First-tier tribunal. You may consider writing to the First-Tier tribunal to argue that the DWP has considered the mandatory reconsideration request and so you are able to appeal. You should contact a benefits adviser if you are considering this.

First-Tier Tribunal

If you believe the decision the DWP has made is incorrect, you can appeal to the first-tier tribunal. You must be able to evidence to the first-tier tribunal that the DWP have considered you mandatory reconsideration application. Send a copy of the mandatory reconsideration notice to the tribunal when you appeal.

If you have not received a mandatory reconsideration notice, remind the DWP that this needs to be done even if they believe your claim is not valid. If you are still unable to obtain a mandatory reconsideration notice, you could still consider appealing to the First-tier tribunal, but you would need to provide evidence that an application was made. The tribunal will decide whether the evidence is sufficient for them to consider your case.

Also supply any documents that support your appeal that have not already been supplied to the DWP, and a summary of why you think the DWP decision is wrong.

  • You can request to attend the hearing when you make the application if you wish.
  • The Tribunal must deal with the case fairly and justly.
  • The Tribunal can ask you or the DWP for further information to help them make a decision. It is important to respond to any request or your appeal could be struck out.
  • You can have a representative who can help present your case to the Tribunal. You’d need to give the Tribunal written notice of this at least 14 days before the hearing.

Time limits

You must make the appeal no later than one month after the date you have been sent the mandatory reconsideration notice.

Applications after one month can still be treated as being in time if neither the DWP nor anyone who has been added to the appeal objects. It is not common for the DWP to object, so it is worth making an application even if late. Explain why your application is late when you apply.

Decision notice

You will receive a decision notice; this will detail the tribunals decision and the reasons for it. If you have won, the DWP should carry out the Tribunal’s instructions straight away.

If you lose, you may be able consider a set aside on procedural grounds but only if it is in the interests of justice to do so. You may also be able appeal to the Upper Tribunal. You’d need to be able to show that there has been an error of law. Speak to a benefit adviser before considering either option.

More information on the First-tier tribunal process can be found on the GOV.UK website.

Fraud and civil penalty

The DWP may say you have committed fraud if you failed to disclose a material fact or deliberately misrepresented information. If you are accused of fraud, you should seek legal advice as soon as possible.

You should have a formal interview ‘under caution’ and will be given around two weeks’ notice. Use this time to try and find someone, preferably a solicitor, to sit in the interview with you.

The DWP may ask for additional information, it is important that you provide this or your benefit payments may be stopped. You benefit may also be stopped whilst the investigation takes place.

If you are found guilty of fraud, you may be prosecuted. Again, if it looks like this may happen it is important to get legal advice on your options.

If you haven’t committed fraud but the overpayment has been caused because you gave an incorrect statement or incorrect information and did not try to correct the error, you may receive a civil penalty. The overpayment will also need have occurred after 1 October 2012 and be more than £65.

The penalty would be added to the amount owed and recovered in the same way.

DWP discretion to waiver (write off)

The DWP can agree to waiver (write off) the overpayment. However this will usually only be done in exceptional circumstances where recovery action will result in severe welfare issues for you or your family.

The DWP will also look into the circumstances of the overpayment. It may be in your favour if the overpayment was the result of a DWP error rather than your failure to disclose information or your misrepresentation of any information.

It would normally be expected that the recovery of the debt is causing either financial hardship or welfare issues for the debtor or their family.

The DWP should consider:

  • the debtor’s financial circumstances and those of their household;
  • whether the recovery of the debt is impacting the debtor’s health or that of their family;
  • where the debtor can demonstrate that they did not benefit from the money that was paid; and
  • any other factor which appears relevant to the decision maker, or which indicates recovery would not be in the public interest.

You can use our sample letter to ask the DWP to waiver your debt. You’ll need to provide as much information as possible to support your request. This should include.

  • Any evidence that the overpayment was not caused by you and any steps you took to prevent the overpayment. This may include details of information you provided to the DWP and when.
  • A list of all your debts and the steps taken to manage these.
  • Full details of your income and expenditure.
  • Bank statement for the last six months.
  • Evidence of exactly how recovery of the debt would have an excessive negative impact on the welfare of you and your family.
  • Evidence that your ill health is being made worse or caused by financial hardship in the form of a letter from a medical professional. For example, a GP, consultant, psychiatric nurse, support worker or welfare advisor.

You can make an initial request through your UC journal if you have one, or write to the address on the letter you've received.

If a waiver is not agreed, you do not have the right to appeal. You could look to complain to the DWP.

Complaint

If you are unhappy about the service you have received from the DWP, you can use the DWP's complaint procedure. Contact the office that dealt with the decision and make the complaint. You can find relevant details to contact on the GOV.UK website.

This should be dealt with within 15 working days. If you unhappy about the outcome, ask that the complaint is passed to a senior DWP manager. This should be dealt with within 15 working days.

If you are still unhappy after the internal process, you can escalate their issue to the Independent Case Examiner within 6 months. This can be done by phone on 0800 414 8529 or by writing to: The Independent Case Examiner, PO Box 209, Bootle L20 7WA.

If you are still unhappy, you could ask your MP to refer their case to the Parliamentary and Health Service Ombudsman.

The Parliamentary and Health Service Ombudsman deals with complaints about maladministration and delays by the DWP. You can begin a complaint by completing the online form and sending this to your MP. You need to do this within one year of becoming aware of the matter.

Recovery

Breathing space

If you need time to get debt advice and find a debt solution, you may want to consider applying for breathing space.

Breathing space will stop most types of enforcement and also stop most creditors applying interest and charges for 60 days.

To find out more, see our Breathing space fact sheet.

If you claim Universal Credit

If you now receive Universal Credit rather than legacy benefits, the debt can be recovered as though it is a Universal Credit overpayment. See the Recovery section of our Universal Credit overpayment overpayment fact sheet.

Deduction from benefits (other than Universal Credit)

Overpayments can be recovered from most benefits. There are some exceptions.

  • Child benefit and guardian’s allowance cannot have deductions for overpayments, other than overpayments of child benefit or guardian’s allowance.
  • No deductions can be made from Housing Benefit, except Housing Benefit and Council Tax support overpayments.

The maximum deduction from Income Support, Income based/Contribution based Jobseekers Allowance, Income based/Contribution based Employment and Support Allowance and Pension Credit is:

  • £11.55 per week; or
  • £30.80 per week (if you agreed to pay a penalty or committed fraud).

The amount taken may increase if you have part-time earnings, income from charitable payments or a war pension.

There is no maximum deduction for the recovery of benefit overpayments through other benefits. The DWP will usually want to deduct one third of your weekly benefit. There are separate rules for clients in receipt of Universal Credit, See the Recovery section our Universal Credit overpayment overpayment fact sheet.

You can find more detail on all deduction amounts in Appendix 2 of the DWP’s guidance on overpayment recovery.

Direct earning attachment

Overpayments can also be recovered from your wage via a direct earnings attachment.

You and your employer will be sent a notice setting out how much will be deducted. The deduction will be a % of your net income (after tax and deductions). You can find the amount you should have deducted and more information on the GOV.UK website.

If the amount being recovered is causing financial difficulty, you should use your budget sheet to support asking for the amount to be reduced. The DWP benefit overpayment recovery guide states that a reduced payment can be considered if it is causing you hardship.

You should not be left with less than 60% of your net earnings. This is called the protected earnings proportion. If you are being left with less than this, send a written request to your employer asking how the deduction has been calculated. Your employer should provide the information within 28 days.

Court Action

Whilst not common, the DWP can look to take you to court to obtain a county court judgment (CCJ). This would usually only be done if you are no longer claiming benefits and you cannot agree a repayment plan.

See our Replying to a County Court Claim factsheet.

Limitation England and Wales

If a debt is barred under statute, it means that by law (the Limitation Act 1980), the lender has run out of time to use court action to try and make you pay the debt.

For benefit overpayments, time starts to run from the date a final decision was made to recover the debt. Once the limitation period is running, the debt will normally be statute barred if:

  • the DWP has not already started a county court claim for the debt; and
  • you or anyone else owing the money (if your debt is in joint names) have not made a payment towards the debt during the last six years; and
  • you or anyone else owing the money (if your debt is in joint names) have not written to the DWP admitting you owe the debt during the last six years.

However, it will still be possible to recover the overpayment from benefits or wages as the DWP do not have to go through the court to do this

Useful contacts

GOV.UK for information on finding legal advice www.gov.uk/find-legal-advice

Independant Case Examiner Phone 0800 414 8529 www.gov.uk/government/organisations/independent-case-examiner

The Parliamentary and Health Service Ombudsman Phone 0345 015 4033 www.ombudsman.org

Turn2us for information on finding a benefits adviser https://advicefinder.turn2us.org.uk/

Universal Credit helpline Phone 0800 328 5644

Other fact sheets which may help you

Breathing space fact sheet

Replying to a County Court Claim