DWP’s decision and evidence presented to a tribunal
17. We have carefully considered Miss A’s complaint about DWP’s decision that she failed to declare her pension and so was not entitled to the overpaid UC, and the evidence to support this decision that it used at Tribunal.
18. Miss A strongly disagrees with DWP’s decision that she was not entitled to the UC it advised she had been overpaid. Where someone thinks the DWP has made an incorrect decision on their entitlement to benefits, they have a statutory route of appeal open to them. The first step is to request a mandatory reconsideration (MR) and, if that does not change the decision, they can appeal to a tribunal.
19. Where someone has a legal route available to achieve the outcome they are looking for, and where it is reasonable for them to pursue it, we are not able to look at those matters. The legislation which gives us our powers to consider complaints is the Parliamentary Commissioner Act 1967, and section 5(2) of this Act sets out the limitation above.
20. We can see that Miss A had a legal route via statutory appeal to tribunal, which she pursued, and it was reasonable for her to have followed that route as only a tribunal could have achieved the change of entitlement decision she was looking for. As such, we are not able to look further at this matter.
21. The Tribunal did not reach the decision that Miss A was hoping for, and she tells us that this is because DWP changed the relevant evidence before sharing it with that judicial forum. Miss A tells us that DWP told the Tribunal that she failed to declare her pension in her application form, and it presented ‘fraudulent’ evidence of a declaration which it said she had signed listing ‘personal or occupational pensions’ as declarable income. She is clear that this is not the declaration that she signed and says there was no option to declare an occupational pension on that document. We understand that this was very distressing to her.
22. As explained above, the powers by which we may consider complaints are set out in the Parliamentary Commissioner Act 1967. Schedule 3 of the Act, ‘Matters not subject to investigation’, explains that we are not able to look at ‘[t]he commencement or conduct of civil or criminal proceedings before any court of law in the United Kingdom’.
22. This means that in our role, it would not be appropriate for us to consider complaints about the conduct of legal proceedings, including giving a view on the evidence provided during those proceedings, as the person complaining had the opportunity to challenge those actions as part of that legal process. This means that if Miss A had concerns about the quality and accuracy of evidence presented to the Tribunal, it was open to her to have raised those concerns with the judge during the appeal.
23. In this case, Miss A has been quite clear that her concern is about DWP presenting false claims and evidence in legal proceedings, which she believes caused her appeal to be unsuccessful. The legislation set out above makes clear that the appropriate forum for addressing such concerns is part of that legal process and, as such, it would not be appropriate for us to replace the Tribunal’s role in considering those matters. For the same reason, we cannot give any view that DWP’s actions caused her to lose the appeal, as we are unable to give a view on or overturn the Tribunal’s decision or replace its decision with our own. If Miss A believes the Tribunal’s decision is wrong, it is open to her to request an appeal to an Upper Tribunal.
24. We have therefore decided to take no further action with Miss A’s complaint about the DWP’s UC entitlement and overpayment decision and the evidence it presented to a tribunal.
Fraud investigation
25. Miss A complains to us that DWP wrongly opened a fraud investigation into her claim. During the complaints process, the ICE identified that DWP had not promptly identified and acted on information Miss A had provided and contacted DWP to attempt a resolution. This resulted in an apology and financial remedy from DWP.
26. We have considered why Miss A remains concerned about DWP’s investigation of her UC claim after ICE contacted the DWP and agreed a resolution on her behalf. She told us that she could have lost her son to suicide and fears she could have been imprisoned due to its investigation, despite her having made Journal entries telling DWP about her pension which were ignored. We are very sorry that Miss A’s household was so seriously impacted by these events.
27. We can see that DWP acknowledged that it missed several opportunities to correct her UC entitlement before it finally did so on 22 March 2022. It recognised it missed her first journal entry drawing her pension to its attention on 28 February 2019, and her Compliance interview on 25 January 2021. It agreed to provide a financial remedy to recognise its failings, totalling £225, and a written apology for its mistakes. We can also see that DWP responded to a further complaint on these matters following ICE’s intervention on 21 August 2024 and made a further payment of £200. This means that the financial remedy provided by DWP totals £425.
28. We agree that DWP’s actions in failing to act on the information Miss A provided are indications of maladministration, contrary to the expectations in its own Customer Charter of ‘getting it right’ by ‘[providing] you with the correct decision, information or payment’ and ‘keeping you informed’ by ‘deal[ing] with your request the firm time you contact us, or as soon as we can’. Its actions are also contrary to our Principles of Good Administration, which include ‘being customer focused’ by ‘dealing with people promptly, within reasonable timescales’ and ‘being open and accountable’ by providing ‘information and, if appropriate, advice that is clear, accurate, complete, relevant and timely.’
29. We asked DWP for more information about its investigation, and we would like to assure Miss A that there was no risk of her being arrested as part of the enquiries it made in this case. We understand that Miss A’s circumstances were investigated as part of its ‘Compliance’ process, which its internal guidance, ‘Compliance Instructions – Introduction’, defines as ‘the action taken to ensure a benefit claimant gives the correct information and reports all relevant changes at the right time during the life of the benefit claim. It is not a criminal investigation and compliance interviews are not performed under caution.’
30. We do understand that this will still have been a stressful experience for Miss A, and we have considered if DWP has adequately put things right.
31. We can see that if DWP had acted appropriately on the information it received from Miss A in February 2019, this would have largely avoided the resulting overpayments, and it would likely not have needed to initiate its compliance process.
32. Once the Compliance process was initiated, we can see that DWP still did not act on the information Miss A had provided for approximately one year. We can therefore see that DWP did not complete the Compliance process in line with its aims, which its guidance sets out are to ensure: -
• ‘correct benefit entitlement
• all information is obtained to enable an overpayment or underpayment to be calculated
• the causes of the overpayment or underpayment
• how to stop it happening again
• the claimant understands the possible consequences of not complying in the future’
33. We appreciate that the existence of large overpayments will be distressing to Miss A. We must be clear that as she has already challenged them as part of the statutory appeal process, which found that they were recoverable, we cannot consider recommending that they be waived. As explained in the previous section of this statement, this is because Section 5 of the Parliamentary Commissioner Act 1967 says that we cannot investigate ‘any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative’.
34. This means that we cannot consider recommending a remedy that has already been requested and considered in a legal forum. We have no power to overturn the decision of the Tribunal, and that means that its decision that the overpayments are recoverable from her must stand. We understand that this is disappointing and frustrating.
35. We have considered if DWP’s remedy is appropriate to put right the impact of caused to Miss A, with reference to it ‘Financial redress for maladministration: staff guide’ and our own ‘Principles for Remedy’. We can see that DWP’s actions caused Miss A distress and frustration after its own inaction caused it to open a compliance investigation that did not lead to DWP correcting its mistakes.
36. The staff guide explains consolatory payments are intended ‘to return the individual to the position they would have been in but for the maladministration. If this cannot be achieved the aim is to provide redress that is reasonable and proportionate in light of the individual circumstances of the case’. The evidence available to us indicates the DWP has considered the individual impact to Miss A and made a decision accordingly. Having considered our own ‘Guidance on Financial Remedy’, we can see that the impact caused to Miss A falls within our Level Two on our ‘Severity of Injustice’ scale, for which £450 is an appropriate remedy.
37. Miss A tells us that this is not enough as it caused her significant distress, exacerbated her health problems and meant she had to put herself at an increased risk of catching COVID-19. We have thought about this very carefully.
38. We have not seen anything that might allow us to say, on the balance of probabilities, that Miss A experienced the above as a direct result of DWP’s errors. We are aware that COVID-19 was an extremely difficult time for many people, and we have not seen evidence that allows us to conclude on the balance of probabilities that DWP’s error, rather than any other factors, caused or contributed to Miss A’s health risks and concerns, and distress beyond that already recognised.
39. We have considered whether we should make any further recommendation for remedy, effectively the amount of overpaid UC that Miss A says should be written off, given that she tells us she would not have to repay that amount if DWP had not made its mistake. However, it would not be appropriate or in line with our Principles for Remedy to do so, as this would not put Miss A back in the position she would have been in before the error; rather, it would leave her in a better position as she would have had the benefit of additional UC to which the tribunal found she was not entitled.
40. With the above in mind, we can see that DWP made some mistakes in its handling of Miss A’s contact with it about her benefits. We can also see it has taken appropriate action to put things right, and so we will therefore take no further action. We understand that these events have been distressing to Miss A, and we hope that our explanation is helpful to her.