Department for Work & Pensions

5. Mrs O complains on behalf of Mr O that the Department for Work and Pension (DWP) failed to take into consideration his terminally ill diagnosis and severe ill health when pursuing an overpayment of Pension Credit totaling £27,960.36 for the period December 2007 to August 2014. She says it did not consider the effect the recovery of the debt was having (and did have) on Mr O’s health, despite evidence from medical professionals confirming this. She says the DWP should have taken this, and the fact it had denied him his appeal rights within his lifetime into consideration and should have waived the debt.

6. She says the way in which DWP handled the case caused additional, unnecessary stress and worry and impacted on his health at the end of his life. She and his GP feel this accelerated his death.

7. Mrs O says she has also experienced significant stress from being threatened and harassed by DWP’s debt management. This was despite providing medical evidence that it was also affecting her health and her son’s health and after it changed its requirements for evidence on two occasions.

8. Mrs O says that the house Mr O left to their son will have to be sold to repay the debt which will have a devastating effect and has caused additional pressure and worry.

9. As an outcome to the complaint, they would like the case to be reviewed and for a reconsideration of the decision to cease recovery of the overpayment.

10. Unfortunately, due to the time that has passed, DWP no longer holds any paperwork for this case. However, we have been able to rely on a report written by the Independent Case Examiner which sets out the background to these events.

11. In May 1999, Mr O applied for Income Support. This later changed to Pension Credit. Both benefits are means-tested. This means that if the recipient’s income increases, the amount of money they are entitled to reduces.

12. In July 1999, Mr O began to receive an occupational pension. According to DWP, it had no record that Mr O told DWP about this at the time.

13. In June 2014, DWP conducted a review of Mr O’s benefit entitlement. It noted that his occupational pension meant he had not been entitled to Pension Credit since July 1999, so in August 2014 it stopped payment. Around this time doctors told Mr O he had terminal cancer.

14. In March 2015, DWP told Mr O it had overpaid him £27,913.88 in Pension Credit. Two weeks later a local authority caseworker wrote to DWP on Mr O’s behalf. The caseworker asked DWP to look again at its decision that it had overpaid Mr O. (This is known as a request for a mandatory reconsideration). DWP refused, saying it had no record that Mr O had ever let it know about his occupational pension.

15. In April 2015, the caseworker again asked DWP to look at its decision. The caseworker explained that Mr O was seriously ill, and the worry of the debt was making matters significantly worse.

16. The caseworker gave DWP a copy of a letter from Mr O’s GP which set out Mr O’s poor state of health. The letter explained that Mr O was terminally ill. It also said that, as well as suffering from cancer, Mr O had a history of depression and alcohol dependency. The GP said that, since finding out about the debt, Mr O’s mental health had worsened, and it had made him feel suicidal. The GP added that pressure to recover the money from Mr O ‘could be detrimental to his health and put him at risk’. The GP asked DWP to take account of this information.

17. The caseworker added to what the GP had said. They said the added worry and stress of the debt coming to light was exacerbating Mr O’s already poor mental health and depression. On that basis, they asked DWP to write off the overpayment.

18. In May 2015, DWP told Mr O it would not write off the overpayment and still expected him to pay it back. Although it recognised Mr O’s poor state of health, it said it saw no evidence the debt alone had caused this.

19. DWP did agree not to recover any money from Mr O for six months (in error, DWP took one payment in June 2015 but subsequently refunded this).

20. In July 2015, Mr O sadly died. According to Mrs O, this was the result of an excess of self-administered morphine in his system.

21. In August 2015, DWP wrote to Mrs O and asked her to pay the full amount of the overpayment by 2 September. Mrs O responded and explained that the only way to raise the money needed to pay the debt was to sell Mr O’s former home (which was now occupied by their son). Mrs O asked DWP to reconsider its position which it did but decided the overpayment remained recoverable.

22. In June 2016, DWP wrote to Mrs O again and asked her to pay the money by selling the property.

23. In August 2016, Mrs O contacted DWP again (through a representative) and suggested its position was unfair. She said the way DWP had pursued her husband for the overpayment had led to his death, something his GP had warned could happen. She said that she and her son had been traumatised by these events. She said it had been her husband’s wish to pass that home to his son.

24. DWP replied in October 2016, and said it still intended to collect the overpayment. It told Mrs O’s representative that it had written to her the previous month asking her to explain why she thought it should waive the overpayment (and provide supporting evidence), but she had not yet responded. In November 2016, DWP wrote to Mrs O to say it was considering taking legal action to recover the money.

25. By this point, Mrs O had raised her concerns with the Independent Complaint Examiner (ICE), the last stage of DWP’s complaint process. Mrs O’s MP wrote to DWP on her behalf and asked it to suspend recovery while the ICE investigation was ongoing. DWP responded and said it had a duty to recover overpayments and could not suspend this process simply because a complaint had been made to ICE. However, it added that Mrs O could submit a waiver request in her own right if she felt recovery was detrimental to her health

26. In February 2017, Mrs O submitted a health waiver request. This included a letter from a GP Practice counsellor, dated February 2017, which outlined the impact events were having on Mrs O. She also included a letter from Mr O’s GP dated March 2016, which said:

“I think it very likely that the upset of dealing with the reclaim of his pension credits would have adversely affected his health and did affect his health…”

27. As well as this, Mrs O gave DWP a letter from a Professor in Clinical Oncology dated April 2016. The Professor noted that DWP were attempting to recover the overpayment from Mr O’s estate and asked it to reconsider, due to the distress caused to the family at a very difficult time and in the interest of natural justice.

28. In March 2017, DWP refused Mrs O’s request. It said it could only consider evidence submitted within the previous six months. It said that, although the evidence from the counsellor met this criterion, it did not serve as evidence that recovery of the overpayment was proving detrimental to Mrs O’s health.

29. In July 2017, Mrs O gave DWP further evidence of the impact these events were having on her. As well as an updated letter from the Professor, confirming that their original concerns still applied, this included a letter from Mrs O’s GP, dated June 2017. This said Mrs O had symptoms of depression and was not coping well with DWP’s frequent demands for her to repay the money. The GP said Mrs O reported frequent episodes of crying, poor sleep, poor concentration, and a poor appetite.

30. Mrs O also gave DWP a letter from her husband’s former GP. The GP said that, although Mrs O and her son were no longer patients at the practice, the GP knew the family well and was aware of the effects these events were having on their physical and emotional well-being. The GP added that the only way to settle the overpayment would be for Mrs O to sell the property and this would result in extreme hardship.

31. Mrs O’s son’s GP also wrote a letter of support. The GP said the events were having a negative effect on Mrs O’s son’s health.

32. In September 2017, DWP responded and said it was still not willing to waive the overpayment. It said because Mr O was deceased, he no longer met the criteria for waiving an overpayment on health grounds.

33. In July, ICE shared the outcome of its investigation into Mrs O’s complaint. It noted that part of DWP’s standard process is to offer the option of a ‘mandatory reconsideration to someone who challenges an overpayment decision. ICE said DWP should have recognised the original contact from Mr O’s representative as a request for a mandatory reconsideration (as well as a request to waive the overpayment). ICE, noted that DWP had eventually completed the reconsideration, following Mr O’s death, but said it should have done so while he was alive. It recommended that DWP pay Mrs O £100 as a remedy to this error.

34. ICE further noted that, following the reconsideration, DWP’s position remained unchanged. It said DWP had explained to Mrs O how she could appeal the decision to an independent Tribunal, but she had not pursued this option.

Background to overpayment waiver requests

35. Under our Principles of Good Administration - ‘getting it right’ – we expect organisations to spend public money with care and propriety. As a result, we generally expect organisations, where possible, to recover money it has paid to someone who was not entitled to receive it. However, there are some circumstances where it may not be appropriate to recover that money. For example, where doing so is likely to have a significant effect on a person’s health and well-being.

36. DWP recognises this as well. It has explained that, when formulating its overpayment processes, it takes close account of HM Treasury guidance on Managing Public Money. This guidance makes clear that DWP has discretion to write off an overpayment on hardship, including health, grounds.

37. DWP’s own Benefit Overpayment Recovery guidance specifically allows DWP to consider writing off an overpayment on health grounds. However, it will only do this in ‘very exceptional circumstances’ and only if certain criteria are met. One such criteria is that the debtor has shown evidence that paying back the debt is likely to have a detrimental impact on their health.

38. The Guidance makes clear that DWP has a duty to protect public funds and recover debt where it is reasonable to do so. Therefore, it will only grant waivers ‘where it can be clearly demonstrated that the debtor’s circumstances will only improve by waiver of the debt’.

39. DWP also referred us to its Guidance on the Application of Secretary of State Discretion (the waiver guidance). This also recognises that, in some exceptional circumstances, DWP can choose to waive recovery. In making this decision, one of the factors DWP should consider is whether recovery will have a detrimental effect after considering any relevant personal circumstances.

40. Under the guidance, DWP has the power to suspend recovery of an overpayment if it feels it would be appropriate to do so. Usually, this is to help alleviate a customer’s hardship, although DWP has discretion to apply the suspension in other circumstances (for example, where the customer is in hospital). DWP’s Debt Management Guidance says it may consider suspension at any time during the recovery process.

41. According to the Debt Management Guidance, the period of suspension depends on the circumstances at the time. However, when we contacted DWP about this it explained that in practice the suspension will usually last for six months, after which it will review the situation. DWP will then decide whether to end the suspension at that point or extend it for a further fixed period.

42. The waiver guidance also provides a steer for dealing with cases where a debtor with a terminal illness requests a waiver on health grounds. This guidance says that, whilst DWP should deal with any such request sensitively, its approach is still to look at whether recovery of the overpayment would be detrimental to the health or welfare of the individual or their family. This guidance makes clear that evidence of a terminal illness is not an automatic reason for waiving an overpayment and the decision will still depend on the circumstances of the case.

43. The guidance reminds staff that, in such cases, there are alternatives to waiver. It says that, in cases where there is potentially an estate from which recovery could be pursued, it might be more appropriate to suspend recovery until the death of the terminally ill person.

46. We have not looked at the overpayment itself or how it arose. We have looked only at DWP’s decision not to waive the overpayment. This is because, as we explain elsewhere, if Mrs O had wished to challenge the overpayment itself, she had the right to appeal that decision to a Tribunal. By law, we cannot investigate any decision which has a right of appeal to a Tribunal.

47. Mrs O has explained that, although she initially planned to appeal, she later withdrew this as the merits were low without her husband’s evidence.

48. We do not have the power to overturn DWP’s decision not to waive the overpayment or substitute our own decision in its place. All we can look for is maladministration in the making of that decision. In other words, we can look to see if something went wrong in the decision-making process. If it did, and we think DWP may have made a different decision if it had considered matters properly, we can ask it look at the decision again, this time on the correct basis.

Mr O’s health waiver request

49. The information we have seen so far shows that, when Mr O first asked DWP to waive recovery, it refused on the grounds that it could not see that recovering the overpayment was the sole cause of Mr O’s health problems. This response appears to be a misunderstanding of the relevant guidance.

50. There is no dispute that, at the time of these events, Mr O was in poor health. However, the relevant consideration was not whether recovering the overpayment was the cause (sole or otherwise) of Mr O’s health problems. Instead, what DWP needed to consider was: • Whether recovery of the debt had, or was likely to have, made those health problems worse; and • Whether Mr O’s circumstances would improve if DWP decided to waive the debt.

51. DWP’s response to the waiver request suggests it did not properly consider either of those factors at the time. This was an error.

52. Having said this, we cannot say DWP’s response would have been different if it had considered the matter properly or that it would, or should, have waived the overpayment.

53. When we contacted DWP as part of our investigation, it explained that, despite what its original letter may have said, it had not, in fact refused a waiver solely for the reasons stated. It explained that, regardless of what may have caused or worsened Mr O’s ill health, DWP still needed evidence that a waiver would have improved his circumstances. It said there was nothing in the GP’s letter to suggest that waiving the debt would have had a significant positive impact on Mr O’s health or wellbeing.

54. DWP added that, in any event, there was insufficient evidence in the GP’s letter to demonstrate what effect recovery of the debt was having on Mr O’s health. It explained that the GP’s letter had said there ‘may’ be an impact if DWP started to recover the debt but had not explained what that impact was or was likely to be. In DWP’s view, the letter was speculative rather than specific evidence.

55. We can understand why Mrs O may be unhappy with this explanation, particularly as, following her husband’s death, his GP wrote another letter to DWP suggesting DWP’s actions had likely adversely affected his health.

56. However, DWP’s explanation is in line with its guidance which makes clear that, where the waiver is requested on ill health grounds, the evidence must be ‘specific as to the effect the recovery is having on the claimant’s health’. As DWP has pointed out, the GP’s letter was not ‘specific’ on this issue. For that reason, although we feel this may have been a narrow interpretation of what the GP had said originally, and may have benefitted from further clarification, we cannot say it was unreasonable.

57. In summary, although we think DWP failed to properly consider Mr O’s waiver request (and/or properly explain why it refused the request), we cannot say Mr O suffered a material injustice as a result. This is because we cannot say that DWP’s decision would or should have been different.

Mr O’s terminal illness

58. The guidance shows that DWP could not waive Mr O’s overpayment simply on the basis that he was terminally ill. It still needed to consider whether waiving the debt was likely to improve his circumstances.

59. The evidence we have seen suggests that DWP did consider the matter and decided, for the reasons stated, that Mr O did not meet the criteria for a waiver. As we have explained, we cannot say this decision was maladministrative.

60. We can also see that while DWP did not consider it appropriate to waive the overpayment altogether, it did consider whether, in the light of Mr O’s circumstances, it would be appropriate to start recovery immediately. As a result, it decided to suspend recovery for six months. This suggests to us that DWP took Mr O’s concerns seriously, even if it did not act in the way he may have liked.

61. We are slightly unclear why DWP decided to suspend recovery for a fixed period. Although we accept that a six-month suspension is standard procedure, and in line with DWP’s Debt Management Guidance, in our view, this was not a ‘standard’ situation. DWP knew from the GP’s letter that Mr O was dying. This should have prompted it to consider whether there was potentially an estate from which recovery could be pursued. If so, DWP should have considered whether to suspend recovery until Mr O’s death and not just the standard six months. We have seen no evidence that DWP considered these points and that was an error.

62. Having said this, we cannot say Mr O was materially disadvantaged by this error. Even if DWP had considered the matter properly, it seems likely it would still have suspended recovery rather than waiving the overpayment, which is what Mr O wanted. In those circumstances, the only difference would have been the length of the suspension.

63. We also know that at the end of the six months, DWP would have reviewed the situation. Although we cannot be certain what the outcome of that review would have been, given the reason for the suspension, namely that Mr O was dying, it seems likely DWP would have extended it. In other words, it seems likely that, , Mr O would not have had to pay the money back in his lifetime and the debt would have transferred to his estate.

64. We realise this would have left Mrs O in a very difficult position. Not only had she sadly lost her husband, but she had inherited a debt which, she believed, should have been set aside while he was alive. She also felt DWP’s failure to do so had contributed to her husband’s death. However, whilst we have great sympathy with Mrs O’s situation, we cannot say for certain it resulted from DWP’s maladministration. For that reason, we have decided not to uphold this part of her complaint (although we have considered the emotional impact these events had on her elsewhere in this report).

The consideration of Mrs O’s health waiver request

65. The evidence we have seen suggests that DWP did not consider this matter properly.

66. Under our Principles of Good Administration – getting it right – we expect organisations to take account of relevant considerations when making decisions. In this case, this meant DWP needed to take account of the evidence Mrs O had submitted in support of her request.

67. When Mrs O first made her request, DWP told her the evidence she presented was not enough to meet the high threshold set by DWP’s waiver guidance. It also told her that part of the evidence she submitted, namely the letter from the Professor, was not recent enough for its purposes.

68. Unfortunately, we have not had sight of the GP Practice Counsellor’s letter so cannot take a view on how, if at all, DWP took it into consideration. For that reason, we cannot say DWP failed to meet our expectations here.

69. Having looked at DWP’s guidance, we cannot see it sets a time scale for considering whether medical evidence is relevant. However, we cannot say DWP’s decision was unreasonable. Under our Principles of Good Administration – acting fairly and proportionately – we expect organisations to take decisions which are proportionate to the objectives pursued. In this case, DWP’s objective was to consider whether pursuing an overpayment was proving damaging to Mrs O’s health. To properly assess that, DWP needed information which showed Mrs O’s current state of health, not just what her state of health may have been in the past. Asking for up to date medical evidence was in line with that objective.

70. Although, for the reasons we have set out, we cannot say anything went wrong with Mrs O’s first health waiver request, the same is not true of the second one. The evidence we have seen so far suggests that by this stage, she had submitted up to date medical evidence and from a variety of sources.

71. To act in line with our expectations, DWP should have considered whether this evidence was enough to meet the relevant waiver threshold. We have seen nothing to show DWP did this. Instead, it appears to have refused her request on the basis that her husband was deceased. This was an irrelevant consideration. Mrs O had made the request based on the effect events were having on her, not on the effect they may have had on her husband previously. DWP should have recognised this and considered her evidence accordingly. Its failure to do so was an error and evidence of maladministration.

72. In usual circumstances, our approach would be to ask DWP to consider that evidence now and make a fresh decision on that basis. However, we are aware that a significant amount of time has passed since then and we cannot be certain the evidence is still relevant.

73. DWP has told us it has not yet begun to recover the overpayment (although it still intends to pursue the issue). This means any decision DWP make on continuing to recover the overpayment should likely be based, at least in part, on Mrs O’s circumstances now, not solely on what they may have been previously.

74. We also understand from ICE’s report that DWP’s power to recover the overpayment is limited to the contents of the estate. We cannot ignore the possibility that the value of that estate may have changed. This is something we expect DWP may wish to consider.

75. It is clear from her complaint to us that Mrs O would like DWP to stop pursuing this overpayment. In light of DWP’s previous failing, we are likely to recommend that DWP carefully consider Mrs O’s reasons for wanting recovery action stopped. In particular, it should carefully consider the effect she says this action is having on her health.

76. We take no view on what the outcome of this consideration should be. However, we would not see it as unreasonable for DWP to ask Mrs O to provide fresh medical and/or other supporting evidence as part of its decision-making process.

DWP’s failure to give Mr O a right of appeal

77. As we have explained, DWP should have offered Mr O the option of a mandatory reconsideration. Although the evidence shows this was unlikely to have been successful, it would still have given him the right to appeal that decision to a Tribunal. As ICE found, DWP unfairly denied him that opportunity. That was an error and, under our Principles of Good administration – getting it right – this amounts to maladministration.

78. Although we can understand why Mrs O may feel differently, we cannot see this error is a reason, of itself, for DWP to waive the overpayment. The evidence shows that, for reasons explained elsewhere in the report, Mrs O chose not to appeal, despite having the opportunity to. Whilst we cannot be certain her husband would have made the same decision, we also cannot say an appeal would have been successful. For those reasons, although we accept that DWP’s failure to act properly would likely have upset Mrs O, we cannot recommend it should set aside recovery of the overpayment on this basis.

Emotional injustice

79. As well as the practical impact of DWP’s failure to properly consider Mrs O’s medical evidence, we have also looked at the emotional injustice she has suffered.

80. Regardless of the merits of her waiver request, there seems no doubt Mrs O would have found these events upsetting. As we have explained, she had sadly lost her husband in extremely tragic circumstances. Not only this, but she had also been left with a sizeable debt which in her view was unfair and, if paid, would significantly further disrupt her and her son’s already difficult circumstances. Although we cannot say DWP caused this situation, its failure to properly listen to her concerns would not have helped matters. It would have been further upsetting for her to learn that DWP had failed to give her husband a proper opportunity to challenge its overpayment decision.

81. Under our Principles of Good Administration, we expect organisations to treat people with sensitivity. DWP failed to meet our expectations in this case and that amounts to maladministration. We have made recommendations to reflect this.

1. After reviewing the evidence, we have decided to partly uphold this complaint. We have seen evidence of maladministration in the way Department for Work and Pensions (DWP) considered Mrs O’s request for it to waive an overpayment on health grounds. Although we cannot say DWP should have agreed to this request, we have found that its failure to look at this matter properly, and treat Mrs O sensitively, caused her unnecessary distress and added to an already difficult situation for her.

2. We have also seen evidence of maladministration in the way DWP handled Mrs O’s late husband’s request to waive an overpayment. However, we have seen nothing to suggest that, if DWP had handled matters properly, its decision would have been different.

3. We have seen further evidence of maladministration in DWP’s failure to offer Mr O the opportunity to challenge its overpayment decision. Although, we cannot say this challenge would have been successful, the denial of opportunity was an injustice.

4. We were sorry to learn of the distressing circumstances which surrounded this complaint and offer our belated condolences on the sad loss of Mrs O’s husband. Whilst we realise that our investigation is unlikely to have provided the full outcome she was looking for from her complaint, we hope we have explained the full and careful consideration we have given to her concerns.

82. Under our Principles for remedy, where maladministration has led to injustice, we expect organisations to try to offer a remedy that returns the complainant to the position they would have been in otherwise. If that is not possible, the remedy should compensate them appropriately.

83. When considering an appropriate level of financial compensation, we are guided by our published ‘Severity of Injustice’ scale (as well as other, similar cases we have dealt with). In our view, the injustice DWP’s failures caused Mrs O sit at level three of our scale. For that reason, we recommend that, within four weeks of the date of our final report DWP: • Apologise to Mrs O for not properly considering her request for a health waiver; and • Pay her £500 for the distress this has caused her.

84. We also recommend that, within two months of the date of our final report, DWP • Carefully consider Mrs O’s request for it to waive recovery of the overpayment, paying particular attention to the effect she says the prospect of recovery is having on her health.