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

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  • Thank you for your comment. Comments are moderated before being published.
    Stephen cave · 6 months ago
    My brother took universal credit to tribunal and on 10 September won is case he never received the letter till 28 so rang them up said why haven’t u paid me they said they ad not received the letter so can take letter down job centre with other evidence so did  but could not understand them not getting letter so rang tribunal up they said you ad your case on 7 won on 10 we sent automatic on 10 to universal credit they are lieing then gave him 1014 took 680 of got 340 my brother who ad advisor message universal credit saying he was awarded full year’s housing benefit that’s 4700 then got awarded all hotel bills 2650 then they shouldn’t took 680 of that’s 7800 take 340 paid total 7460 this wot he should got is advisor message them told my bother message them nothing been heard from for two weeks they have gone past date when they supposed to pay by two mouths my bother got lot health problems he won case now they refusing to pay even tribunal said they have to pay can’t go to a decision maker or tribunal that’s wot done decision maker said no more money tribunal said how can do that are decision final they are lieing again can tack them to court
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    Vince Bown · 9 months ago
    Sad thing is judges back up DWP and make themselves look like fools.
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    Fed Up · 1 years ago
    Unlawful is the name of the game, they said I had been overpaid by a certain amount which was incorrect, so I appealed against the decison. They had my appeal for 6 months and I heard nothing, meanwhile they kept sending me threatning pay now letters. I wrote to my MP, and the DWP then called me and said they would sort it (I was challenging the amount they said I owed, as I had correctly calculated it as less). They then paid me ANOTHER payment of UC (where is the logic?) to make the overpayment up to the amount they said it was and did an attachment to earnings order, withhout making a decision on my appeal. I will be back in contact with my MP.
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    Porridge · 1 years ago
    I am so sorry to hear that this mother of two disabled children was treated with such cold-hearted callousness by the DWP. I am so glad she found the strength to pursue the matter so doggedly and that the Judicial Review revealed the truth. I would also like to thank her, the judge and B&W for publishing this Guide so that we all have access to this information should any of us find ourselves in the position of having been accidentally overpaid even when we had endeavoured to be truthful about our circumstances to the DWP.
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    margo · 1 years ago
    i sent in a letter asking for an overpayment of ESA to be waived on financial grounds-when i called up to see what the outcome was they had simply marked it as no further action required on the letter -they said you couldnt ask for payment to be waived on finncial grounds-when i stated that you could according to the benefits handbook they spoke to a supervisor and came back saying you had to apply on a specific waiver form which they then sent out- it has now been completed and currently waiting on a decision which will very likely be negative by the sounds of things.

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    Ellen Hall · 1 years ago
    They said I had been overpaid in my contribution ESA.  I wrote to them and they never responded.  Proceeded to take off £22 every fortnight.  They are total assxxx holes.  It made me in arrears.  Why don't they take account when it was their error.  
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    Penny · 1 years ago
    I had to repay £7000 that DWP claimed I owed them for not letting them know I had a civil service I’ll health pension. When I had initially applied for benefits I had a home visit, as unable to get to their offices. The DWP agent was shown all my financial documents including the Civil Service Ill Health pension details. He left and gave me a check list ticked with what he had seen which included this pension. I had a breakdown at the time. Anyway this resulted in me having to sell my home and I now have to rent as unable to get mortgage. I have had cancer since then, had a stroke and lost a partner to cancer. I was advised by someone in a DWP call centre to try and claim this back but haven’t had the ability to do so and probably no chance of being repaid. As I said the agent had seen all details and recorded them.
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    Lynn G · 1 years ago
    Macmillan assisted me to claim carers allowance when my husband was diagnosed with cancer, his DLA was migrated to PiP at a higher rate care, I knew it would be an underlying entitlement awarded because we’re receiving pension credit, they awarded carers allowance but we’re paying it into our old bank account so payments were rejected, I discovered I. January 2022 when we received the paperwork, I rang them immediately and queried it they wrongly told me I would be receiving CA not UE as I hadn’t reached retirement age, I rang them 3 times in total as Macmillan disagreed, the DWP rang & said no you’re ok it won’t affect PC then all our money stopped, including HB & CTB we had nightmares trying to correct it, then the DWP advised me to stop claiming CA & the UE would be automatic, I did this, it too 6 weeks to correct them I received a letter saying we owed DWP £1100 overpayment of CA! They wanted to take £63 per week from PC I rang & renegotiated to £5pw which I’m still paying, they stated they’d wiped the debt from the Jan date I’d  phoned but not from award date, we didn’t get any back pay of the severe disability premium we should have received if they’d awarded UE in the first place so not only am I paying back £1100 but we also lost approx £40pw from November 2021 until Jan 2022 each time I rang I was given a different answer, my appeal was rejected because I don’t have proof even though they admitted that I didn’t actually receive any CA until after I’d phoned them to ask if it was correct!
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    Michelle · 1 years ago
    They did this with me with child tax credit  for an overpayment I had'nt been overpaid! They told me to get proof that my son was in full time education from 2011 to 2014 and ring back when I had the proof and it would be sorted. I got a letter of proof from the college rang back to inform them and was told it wasn't for that and it was for a form I never sent back in 2013. I always filled forms in and sent back straight away as it was important! I couldn't get any help with it from anywhere as even CAB advisors said I needed to see a specialist benefit advisor or legal advisor so I exhausted all options and they took £3,800 off me which I didn't owe. I was going through some life threatening brain conditions at the time and they kicked me while i was down. UC advance payment was deducted from my UC payments for 6 months at £50 a month automatic but they couldn't find one of the repayments for a month and was told they were taking out of my benefit as they hadn't received it! They deducted it from my UC before I was paid so they took it from me twice! They also treat me unlawfully for 4 years. The stuff they did was unbelievable but I kept a record of everything. One woman advisor I saw listened to me and went through all my UC account and was gobsmacked at it all and was reporting it all and helping me so they took her off my case. They make me sick.
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    DianaW · 1 years ago
    The DWP's Benefit Overpayment Recovery Guide is engagingly referred to in the judgment as "the BORG" - how splendidly apt, in the context of that monolithic and intransigent bureaucracy.
  • Thank you for your comment. Comments are moderated before being published.
    sk · 1 years ago
    Last year about half way through we were told by Tax Credits we were being overpaid and they needed to claim back some money. We had submitted all figures in the usual way, so it was their mistake not ours that they over paid us. It hasn't been a massive amount per week that has been taken from our tax credits to pay it back. None the less every penny counts right now. We were never told we could waiver this? 
    • Thank you for your comment. Comments are moderated before being published.
      Denise · 1 years ago
      @sk I'm the same SK.... Up to today and this article I have never heard of Waiver! Like yourself it was their mistake we were overpaid.
  • Thank you for your comment. Comments are moderated before being published.
    Denise · 1 years ago
    My partner and myself both received letters stating we were both having £61.71 per week stopped out of our state pension of £185 each per week for an overpayment of £1400  of working tax credit from 2012.

     As the letter arrived on a Saturday we spent the weekend in turmoil worrying how we were going to manage with a deduction of nearly £500 per month.

    As I have a cochlear ear implant my partner (who has mental health problems) had to ring DWP and try to explain in his own way that we couldn't possibly exist if this type of money is stopped.

    They have now reduced this amount to £10 each per week which I think were supposed to feel grateful for!  

    It goes without saying DWP do not consider if you eat or heat your home's when clawing back money that was their fault was over paid in the first place!!
  • Thank you for your comment. Comments are moderated before being published.
    John · 1 years ago
    Well that just confirms what we have all known for a very long time, the DWP are criminals as well as liars.
  • Thank you for your comment. Comments are moderated before being published.
    george · 1 years ago
    I should be appalled but SADLY and not surprisingly im not -  my mother has had SEVERAL  encounters where the DWP have outright lied even though we had the paperwork to show the truth of info ,  one time they said to the Tribunal my mums account was a new one - even though in the bundle of info for the Tribunal-  there were years back awards paperwork  and a previous won Tribunal award ! Another time they said my mum needed to unfortunately answer some questions on a form that day before the f2f could continue due to some error in her paperwork or reschedule another F2F ( bearing in mind she was already there with the assessor ! ) she did the F2F and gained 0 points so took it to Tribunal , when she  went to Tribunal THEY said to my mum that the DWP had unlawfully got her to answer questions at the assessment with the new criteria points system without her knowledge ! If the Tribunal had not pointed this out she would not of known ! She won her award but it shook her to the core by the sheer lies and deceit of a goverment body .
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