DWP failure to exercise discretion not to recover an overpayment of UC

Use this template if all the following apply:

• your client has been overpaid UC
• the overpayment was a result of official error by the DWP
• the DWP are recovering the overpayment through deductions from your client’s UC
• your client is in financial hardship
• a request has been made to DWP Debt Management to waive recovery of the debt
• the DWP has refused to waive recovery or has not responded to the request after a reasonable time

When not to use

Do not use this template if:

• your client has not already requested a waiver in writing to DWP Debt Management and it has not been refused, or
• your client has requested a waiver in writing but DWP Debt Management have not yet had a reasonable time to respond (6 weeks).

The main legal arguments in this template are:

• Under s71ZB Social Security Administration Act 1992 (as amended) (SSAA 1992) the Secretary of State for Work and Pensions (SSWP) has the discretion to recover, or not, any overpayment of UC.
• In R(K) v SSWP [2023] EWHC 233 (Admin), the SSWP failed to exercise their discretion lawfully as they did not take material considerations into account when making the decision not to waive recovery of the overpayment, including
  • that the overpayment arose from official error
  • that the claimant was experiencing financial hardship
  • that the claimant acted in good faith, timeously provided all the information required to the DWP, took all reasonable steps to clarify their entitlement and to prevent any UC overpayment by actively querying their entitlement
  • that the claimant relied on the overpayment to their detriment by spending the extra money on day-to-day living expenses such that the overpayment was irretrievably lost
  • whether it was in the public interest, having regard to all the circumstances, to recover the UC overpayment
• DWP staff guidance Benefit Overpayment Recovery Guide further confirms these are factors which should be considered and  there is a public law duty for the DWP to follow published guidance. 

Information about your client

• name
• address
• national insurance number
• date of birth

Background facts relating to your client

• their family situation
• their nationality/immigration status
• their housing details
• any health difficulties or disabilities
• any capacity issues or vulnerabilities they have
• what financial hardship your client is experiencing as a result of the recovery of the overpayment and the effects of this such as:
  • any risk to their being able to afford to pay for their housing, heating or food
  • any need to use food banks
  • any detriment to their health and welfare or to any of their family members’ health and welfare
• whether your client has spent the overpaid benefit and on what, for example, day-to-day living expenses

Information relating to the decision

• the reason for the overpayment and how it occurred
• the dates of relevant decisions
• specific errors made by the DWP
• any steps your client took to clarify their position relating to the award of benefit and the relevant dates
• how and when your client was notified of the overpayment
• how the overpayment is being recovered
• whether the DWP has been notified of hardship, how and when, and how and when have they responded (including dates)

We've created this guide to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.

This letter can be edited for any failure to exercise discretion not to recover an overpayment of UC. If you need help to edit it please contact [email protected].