Arrears paid twice

scotleag

DWP told me in February I might be due some arrears - not a huge sum but welcome nonetheless - but were withholding it as I may have been overpaid in the past. The sum in question has been paid into my bank account this morning. Twice. Two separate payments for the same amount paid with the normal code for fortnightly ESA. 

Clearly this is in error. I know I am entitled to just one of these payments. My query is what do I do now? Is it my responsibility to report the error? This'll mean at least an hour of my time on the phone to inform them of their mistake. Or should I wait for their systems to pick up the error and they send a request for repayment.

I'd prefer to pay this back as soon as possible but if I can avoid the depressing experience of having to phone them I'd like to do that too. 

janer1967

Hi @scotleag Welcome to the community, I would suggest you inform them as you don't want it to come back at you at a later date.

Do you have an online journal you can put a note on rather than phoning them Im sure they would respond quickly to an overpayment or maybe they may realise the error that has been made 

scotleag

Hi @janer1967
Thanks for this. Bit late in the day now so I guess I'd better set aside Monday morning to speak to them! What's an 'online journal?' I suppose having to ask means I don't have one.

janer1967

Hi 

Online journal is a communication tool for claimants of universal credit I didnt know if ESA claims had the same obviously not 
Hope you get it sorted but I'm sure DWP are still open rather than waiting and worrying all weekend 

woodbine

Hi an online journal is for Universal credit, as you say the best plan will be to phone them when you can on Monday, earlier the better can often mean getting answered sooner.

scotleag

Ah, no, nothing like that. Just realised Monday's a bank holiday (one day seems much the same as another right now) so I'll leave it till Wednesday as phones likely to be in meltdown on Tuesday.

mikehughescq

If this is UC then it doesn’t matter what you do it will be recoverable any way although there are still some arguments which could arguably be had.

However, if it is not UC then unfortunately for DWP it is not recoverable. They cannot receiver any overpayment unless it was due to a failure to disclose or a misrepresentation. 

They will of course ask for it back and suggest you have no choice but to pay it back under the common law principle that you ought to pay back money which is not yours. However, whilst they’ve occasionally tried to pursue such matters through the courts they generally fail, provided you’re well advised, because the court is not the correct route when s71 of the Administration Act lays out that an appeal is the correct route. They’re most unlikely to appeal simply because they would be guaranteed to lose. You have been overpaid in error. It is an official error and therefore not recoverable. 

At this point arguably all DWP have is the equivalent of moral blackmail and an assumption that most people will get in touch; admit the issue and eventually cave under psychological pressure. The general advice is to simply not get involved in direct communication with them at all and go get advice. 

Some people will feel they ought to pay it back else “something bad will happen”. There is no real evidence on that latter point. Some people will hold steady and ignore DWP requests provided they’re confident they’ve been accurately advised on recoverability. 

When DLA was introduced many people got duplicate awards in error. That was a lot of money being overpaid. Those people who got in touch with DWP usually ended up paying it back. Those who did not found that DWP did nothing after an initial flurry of near threatening and often wilfully inaccurate letters pinged about. DWP did nothing because it was their error and nothing they could do.

Nothing bad ever happened to that latter group.

So, go get some accurate advice and then, and only then, make an informed decision as to what is right for you but do not assume you have no choice but to pay it back. 

scotleag

That's astonishing, thanks. It's an ESA payment. It's exactly the amount they said they owed, only paid twice.  Looks like the best thing to do is nothing at all until I hear from the DWP. I'm uneasy about regarding it as a 'windfall' though so might set it aside for the time being and if it becomes clear it needn't be paid back disburse among local charities. I'll fight tooth and nail - and have done - for anything I'm entitled to but I'm not looking to receive something I shouldn't be getting. But it occurs to me that the local food bank for example might be a better recipient than giving it back to the DWP if there's no compunction to do so. Not sure about where I'd go for advice though. I'm under lockdown till end of June at least and I'd imagine likes of CAB will be snowed under at the moment.

woodbine

I would look at it from a moral point of view, had they underpaid me I would expect them to move heaven and earth to pay me what they owed me, had I been overpaid by them I would consider it my moral duty to repay them ASAP. Personally I don't see some archiac rule of common law making a wrong right.
But that's just how I see it.

scotleag

I don't want to hang on to what isn't mine but if repayment can't be demanded then a donation to the local food bank is at least equally as moral as returning the equivalent of one grain of sand to the beach

Cressida

@scotleag I don't think I could live with the fear of them contacting me and asking for it back. You have to do what feels right for you. I agree with @woodbine on this one. Good luck with whatever you decide to do. 

scotleag

If you look at my original post you'll see my first inclination was to repay ASAP. I've no wish to keep it. But I'm looking at what @mikehughescq has posted and now thinking there may be a better option. Whatever I do I'll wait to hear from the DWP first.

Cressida

scotleag said:

If you look at my original post you'll see my first inclination was to repay ASAP. I've no wish to keep it. But I'm looking at what @mikehughescq has posted and now thinking there may be a better option. Whatever I do I'll wait to hear from the DWP first.

@scotleag yes I did read the full thread. I think it is totally a personal thing how you deal with it. I would begin to think maybe someone will be in trouble at the other end for making the overpayment and worry about the consequences of that  Mad I know! 

mikehughescq

woodbine said:

I would look at it from a moral point of view, had they underpaid me I would expect them to move heaven and earth to pay me what they owed me, had I been overpaid by them I would consider it my moral duty to repay them ASAP. Personally I don't see some archiac rule of common law making a wrong right.
But that's just how I see it.

It’s important at this point I think to understand that @woodbine may have misinterpreted my post. For the purposes of clarity on all points:

1 - overpayments of UC are always recoverable and challengeable in very limited circumstances. There is some discretion. UC don’t want to use it at all IMPO (in my personal opinion).

2 - payments on account (advances etc.) are also automatically recoverable but again there is discretion on recovery. 

3 - all overpayments of Housing Benefit or Council Tax Reduction are recoverable unless official error can be shown to which either the claimant did not contribute or could not have been aware. Even then, some discretion to not recover.

4 - everything else is only recoverable if there’s been a failure to disclose or misrepresentation of a material fact. These are precise terms; explored in case law for many decades. S71 as enacted can be found here https://www.legislation.gov.uk/ukpga/1992/5/section/71/enacted should anyone wish it read it.

5 - now, I may have this wrong completely but the post from @woodbine reads as though they believe I said there’s some common law principle which prevents the OP from having to pay back the money. That’s actually the opposite of what I said.

S71 is what prevents recovery. If the claimant didn’t fail to disclose or misrepresent then there are no legal grounds for recovery. It also says that if you want to challenge recoverability there is a process for you to do that.

What DWP inevitably do is ignore that and ask for the money back anyway. This is understandably founded on their being guardians of a public purse but done in such a way as to not always make clear that whilst they might have a moral right to ask for the money back the law does not automatically give them a legal right. 

What they have tried to do in a number of cases is cite the common law principle that you ought to pay back that which is not yours and in a small number of cases tried to pursue the matter through the courts. Largely the courts have dismissed such attempts before they’ve even got near a court because they have (rightly IMPO) said that the court is not the correct route when there is an appeal system outlined in the Administration Act. I believe they have succeeded once or twice in recent years. I have no idea and no recall as to how they pulled that off. 

It’s also true to say that citing such “common law principles” is never black and white. For example, I recall that one has the right to claim ownership of unsolicited post if not claimed by the end of 14 days. A different thing obviously but you get the point. DWP use a generalisation to imply a specific power where it’s not that simple. 

So, the claimant will not be relying on common law. The claimant will be relying on actual law.

Excellent CPAG article here covers this. https://cpag.org.uk/welfare-rights/resources/article/overpayments-and-recovery-common-law which I hope will give the OP some confidence that I am hardly alone in my view.

6 - what a person chooses to do in this situation is of course entirely up to them. However, it seems fair to me that when considering that decision they are at least aware that what the DWP demand and what the law says are not necessarily the same. 

As with all benefits advice a person needs the full picture in order to make an informed decision. 

There is of course a whole philosophical debate to be had here about the role of advice It’s worth pointing out therefore that DWP underpayment was to claimants are huge. Overpayments are 2% but underpayments are 1%. See https://www.gov.uk/government/statistics/fraud-and-error-in-the-benefit-system-financial-year-2016-to-2017-estimates#history. 

Most people would see low take-up of benefit entitlements as a moral issue requiring immediate action so people at least have the low income to which they are entitled. Take-up work by DWP in recent decades has been close to nil. DWP like to see what others do as a moral issue but what they do as not being so. The only work they’ve done to reduce under payments in recent years is to encourage people to claim UC and come off legacy benefits when it’s often a terrible idea to do so. Not forgetting of course that they have actively demonised claimants in many circumstances. Far from “moving heaven and earth” they created the hostile environment many posters here experience as part of the claim process. 

As I’ve already said, having alerted the OP to the issue, they now need to go get their own advice and not rely upon strangers on a forum.