DWP refusal to waiver an overpayment of UC housing costs element when claimant was eligible for housing benefit

Use this template if all the following apply

• Your client has been overpaid UC housing costs element when they were eligible for housing benefit for the same amount
• DWP are recovering the overpayment, or have said they will recover it, and at least one of the assumptions below applies, and
• Your client has asked DWP Debt Management that the debt be waived and this has been refused (within the last 3 months) or not replied to. 

This letter assumes

• the overpayment was a result of official error by DWP
• your client is experiencing financial hardship or recovery is affecting their health
• your client checked whether their award was correct and was told it was

When not to use

Do not use this letter until you have:

• contacted Debt Management to request a waiver, this has been refused or it has not been more than 6 weeks since you made the request

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.
• The Benefit Overpayment Recovery Guide specifically includes that the decision to recover should take into account:
  • the "debtor’s financial circumstances and those of their household"
  • "whether the Department intended the claimant to have the money" and
  • whether it is "in the public interest", having regard to all the circumstances, to recover the overpayment
• There is a public law duty for DWP to follow published guidance. Refusal to do so without a good reason is unlawful. 

Information about your client

• name
• address
• national insurance number (NINo)
• date of birth

Background facts 

Such as:

• your client's family situation,
• your client's nationality/immigration status,
• your client's housing details,
• any health difficulties or disabilities your client or a member of their family has,
• any capacity issues of vulnerability your client or a member of their family has,
• 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.

Information relating to the decision

Such as:

• the reason for the overpayment and how it occurred,
• the dates of relevant decisions,
• any 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,
• how and when the DWP has been notified of hardship, 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.