The DWP’s actions from 1998 to 2001
9. Ms A had several concerns about the DWP’s actions in 1998 which she complains resulted in an overpayment of benefits. She is also very unhappy with how it handled her appeals in 2001 and 2002.
10. In August 2000 the DWP decided she had been overpaid £7,011.65 in income support. It said she had received student income from September 1998 to April 1999 that should have been reported. And, that from April 1999 to January 2000 she should have reported child maintenance payments that she had received. Ms A does not dispute that she had been overpaid but says this was entirely the result of DWP error so she should not be expected to repay it.
11. Ms A spoke with the DWP in July 1998 and told us that during that call she discussed her plan to go to university. She showed us a copy of a letter the DWP sent on 6 July 1998 saying her income support payments would increase in November due to a change in her circumstances. She says that letter was sent after she called the DWP.
12. Ms A appealed the overpayment decision. In August 2021, the DWP revised its decision saying the amount of the overpayment was £5,771.35. That new decision also carried a statutory right of appeal. When Ms A attempted to appeal the decision, the DWP told her she was outside of the relevant time limit to do this.
13. The DWP did not begin trying to recover the overpayment until 2010. Ms A appealed again in 2010 and the court service told her it was too late. She contacted her MP who contacted DWP. The DWP wrote to her MP in September 2010 to say it accepted she may not have meant to claim benefits she was not entitled to, but the overpayment still needed to be recovered.
14. Ms A complained to the DWP that she had called it in 1998 to discuss how studying would affect her benefits and had been advised her entitlement would not change. She escalated her complaint to the ICE and then came to us.
15. It is clear Ms A is upset and feels it is very unfair that the DWP decided her overpayment would need to be recovered. She strongly believes that if a tribunal had heard her appeal against the DWP’s decision, it would have decided she did not have to repay the overpayment.
16. The law says a person needs to make their complaint to a MP within a year of becoming aware of the problem. We cannot investigate complaints made to a MP after one year, unless we can see there is a good reason for the delay. In this case, we can see that Ms A was aware of cause for complaint by 2002 at the very latest, this is when DWP changed its decision, but she did not go to an MP until 2010. This means she is outside of our time limit by seven years. We have discussed this with Ms A to understand the reasons why she did not raise the complaint sooner.
17. Ms A told us that between 2002 and 2010 she was bringing up her young family and while she appreciated a long time had passed, she felt her evidence clearly shows the DWP got things wrong and treated her unfairly.
18. We appreciate that when someone has family responsibilities, finding the time to make or progress a complaint may feel difficult. But we have not seen evidence that might allow us to say Ms A’s responsibilities stopped her from making a complaint at any time between 2002 and 2010. She could have got support from free advocacy services if she felt it would be helpful. We have not seen good reason to put our time to one side and investigate the DWP’s actions before 2003.
19. We understand Ms A feels it is unreasonable that the DWP has the power to recover this overpayment and she does not feel heard. She told us this power imbalance is unfair. Having discussed this with her we appreciate she will be disappointed we are not able to take any further action. We hope we have clearly explained our decision.
The ICE investigation
20. Ms A complains the ICE made mistakes in its investigation of her complaint and that its conclusions are flawed. She took her complaint to the ICE in 2020 and complains its October 2022 report did not cover the issues, or achieve the outcomes she was looking for.
21. We have considered whether the evidence available shows the ICE followed its investigation process, in line with any applicable standards, policies and guidance.
22. Ms A is unhappy the ICE did not investigate all the points she asked it to and where it did investigate, she felt it had not recognised how unfairly she had been treated.
23. We can see the ICE did not comment on everything Ms A complained about. She pointed to a comment in her records which she felt was offensive. This is when DWP referred to a letter she sent on 7 July 2011 as a ‘snotty letter from customer’. The ICE explained it would need to see this matter had been raised with the DWP first and it had given its final response.
24. We appreciate Ms A is frustrated that ICE did not give a view on this matter. The ICE guidance explains it needs to see the DWP’s final response before it will consider an issue, in line with its service agreement with DWP.
25. Ms A complained the ICE, ‘failed to identify that if a process or procedure is unfair (being made to pay back monies owed as a result of misleading, inaccurate and false information provided to a person which lead to an overpayment), that process/procedure is invalid in law.’
26. We appreciate the main reason for Ms A’s complaint was that she wanted to achieve the kind of review and reconsideration of the overpayment decisions she had not been able to achieve in a court. Unfortunately, that cannot be achieved by making a complaint. The complaints process is not a substitute for legal action. The ICE cannot make legal determinations or give any view that a procedure is ‘invalid in law’. The ICE’s role is to look at complaints about the DWP not appropriately following its procedures. It cannot direct the DWP to change its procedures or guidance. This is explained in its guidance.
27. Ms A feels strongly that the DWP should have acted differently. This would be a question of how section 32 of The Social Security (Claims and Payments) Regulations 1987 and section 71 of the Social Security Administration Act 1992 applied to her circumstances. This question can only be decided by a court The fact Ms A’s appeal was declined as being outside of the relevant time frame does not mean that the ICE may then look at those same matters and achieve the same outcomes.
28. This meant the ICE was unable to look at the DWP’s calculation of what it said Ms A had been overpaid, or the DWP’s decision to recover the overpayment. We cannot say the ICE made a mistake by not looking at this, as it acted in line with its own guidance and powers.
29. Ms A was also unhappy her appeal applications in 2001 and 2002 did not make it to the tribunal. Any disputes about whether an appeal was in time or not needed to be taken up with the tribunal service, this is not something the ICE can consider.
30. Ms A complained about the ICE’s decision that the DWP acted fairly when recovering the overpayment. The DWP needed to recover the overpayment in line with its ‘Benefit overpayment recovery guide’. The ICE therefore considered whether it had been acting in line with that guidance.
31. Ms A told us bringing up two children as a single parent meant she was limited in how much she could pay towards the overpayment. She made what she called ‘token’ payments of at most £2 a month from September 2011 until March 2019. The ICE explained it had seen evidence that DWP had contacted Ms A regularly to check if she could increase her payments or when payments had been missed. The ICE said the DWP had been acting in line with its responsibility to ‘maximise recovery’ of the overpayment, while also considering whether doing so would cause hardship.
32. The ICE focussed on events from 2017 to 2019. It found the DWP transferred the overpayment to a debt collection agency in March 2017. It was transferred back to the DWP in October 2017 because the debt collection agency was unsuccessful in getting Ms A to agree to pay more than £2 a month. In October 2017 the DWP told Ms A it would consider taking deductions from her earnings but, after discussing Ms A’s situation with her, it agreed she should continue to pay £2 a month. The DWP next contacted Ms A in July 2018 to ask that she increase her payments and when she declined this, in January 2019 it began the process of making deductions from her employment earnings.
33. Ms A agreed to pay £5 a month and the DWP said it would contact her employer to say it did not need to make deductions from her earnings. The ICE found this agreement was made in a phone call on 18 March 2019, based on the evidence it had seen and we understand Ms A disputes that it could have been in that timeframe. She said she remembered where she had been working at the time and it must have been March 2021 when this call happened. We note this was described by Ms A and the ICE as a difficult and emotional call.
34. In its investigation, we can see the ICE referred to the relevant records but did not find any change to Ms A’s payment plan in March 2021, or evidence of any significant discussions about her circumstances. It noted that payments of £25 a month were agreed in December 2020 and DWP’s records showed they ‘continued thereafter’. This increase in payments began the process of making deductions from Ms A’s earnings in September 2020. Based on what Ms A told us, it is unclear at what point Ms A had phone calls with the DWP. In our view, the key detail is the requests the DWP was making and the agreements reached. We do not see that uncertainty about when this call happened means the ICE’s decision was flawed or that it failed to investigate properly.
35. We can see the ICE acted in line with our Principles when reaching its decision that the DWP had acted in line with its guidance. This is because it reached an evidence-based decision and used relevant DWP standard and policy. Section 2.15 of the ‘Benefit overpayment recovery guide’ says the DWP should recover payments at an affordable rate, considering an individual’s financial circumstance, but where reduced or minimal payments are being made the plan should regularly be reviewed. It would expect people to make payments of around £50 per month, or between three and 20% of their earnings, and the DWP seems to have always agreed payments below this, after considering what Ms A had to say about her circumstances.
36. We understand Ms A found the DWP was at times threatening when recovering the overpayment and this was stressful. Having reviewed the ICE’s consideration of those matters, we cannot say the ICE should have decided the DWP made mistakes when it looked at the steps taken by the DWP’s debt management team.
37. Ms A felt important information was ignored by the ICE. She shared a copy of a DWP letter dated 6 July 1998 with us and we can see this was not considered by the ICE. We cannot criticise the ICE for that, as we can see it asked for this evidence. Ms A accepts she was not able to find and share it during the ICE’s investigation. We considered this letter ourselves and can see it shows the DWP was aware there were upcoming changes to Ms A’s circumstances, but it does not show that the DWP knew the income she would get as a student. As explained, challenging the recovery of this overpayment needed to be done by appealing, when that was an option for Ms A. We have not seen anything to suggest that not having this letter means the ICE was unable to reach a strong decision on the issues it could consider.
38. The ICE said the DWP did not begin recovery in 2002 as it was already recovering a different overpayment. Ms A complained there had not been an earlier benefit overpayment. The ICE was not able to see what that debt was or any details of it. It could only report that recovery of the income support overpayment found in 2000 was suspended from 4 October 2002 until 1 March 2017.
39. This could mean the overpayment related to a benefit claim that the DWP no longer has records of or, as Ms A complains, it could be an error in the DWP’s record-keeping and no earlier overpayment was being recovered. We recognise it would be frustrating for Ms A that this question could not be fully and satisfactorily answered.
40. Having thought about this, we have not seen anything to say the ICE was wrong to provide this explanation, given what it found in the DWP’s records. This is because it can only give a view based on the evidence available to it at that time.
41. From our discussion with Ms A, we understand she strongly believes the evidence shows she was overpaid through no fault of her own and the overpayment should not be recovered. The ICE’s role means it needs to make balanced, evidence-based decisions, in line with our Principles. After reviewing its investigation report and Ms A’s specific concerns, we have not seen signs that the ICE failed to follow its investigation process correctly.
42. While the ICE did not find there had been mistakes in the payments the DWP asked Ms A to make, it did find the DWP had not given explanations when it should have and its response to some of Ms A’s letters was delayed. The ICE recommended the DWP pay £75 to put this right. Ms A complains this did not put right the significant, long-term impact of the DWP’s poor service. She told us she wanted £15,000.
43. The payment the ICE recommended was for the limited impact caused to Ms A by the DWP not replying to letters. Failure to respond quickly to her letters would have been frustrating for Ms A, but we cannot see it had a significant impact or that a larger payment should have been recommended.