There’s scandal brewing around the Department for Work and Pensions (DWP). This is due to a secretive, newly formed ‘unit’ reportedly taking money due to overpayments from Universal Credit claimants. But it seems the DWP may be flouting the law when clawing back money from people – in some cases to the tune of nearly £14,000.
DWP coronavirus chaos
At the start of the pandemic, the DWP limited claimant access to its Jobcentres. As The Canary reported at the time, this had implications. For example, people may not have been able to prove how many children they had, what their housing costs were, and so on. This is because usually would take documents into a Jobcentre to prove these things. So, the DWP accepted what claimants told them online.
Now, it’s come to light that the DWP is starting to trawl through its records. It’s set up a dedicated unit to do this. It’s checking people who didn’t physically prove elements of their claim. And this information only came to light because of a Freedom of Information (FOI) request.
Enter the “Repair Team”
In March, someone called Andy Pennington asked the DWP about its so-called “Repair Team” or the “Retrospective Verification Team”. He wanted to know what information it held on this unit which was checking people’s claims. Pennington noted that the Repair Team was:
tasked with looking at every single claim and asking for the information to now be provided [that couldn’t be physically proven before].
The DWP responded. It said that it could not give Pennington all the information. This was because if it did it:
would be likely to prejudice the prevention and detection of fraud and crime.
But the DWP did say that:
when Universal Credit applications were made in the initial period of the pandemic, customers were advised that their application was being accepted under specific COVID 19 regulations and that the Department would contact them at a later date and ask for evidence to support their application.
We are now re-visiting those cases and are re-applying the verification standards that would have been in place at the time, had it not been for COVID-19. If the evidence does not support the application it will be reviewed and revised to the correct entitlement and, where appropriate, an overpayment calculated and put into recovery.
1,400 snoopers
In June 2021, the DWP gave more detail on this to parliament. The Public Accounts Committee noted that the DWP said that of Universal Credit claims:
those early cases where payments were made without having satisfactory data were flagged for review and it now has a team of 1,400 people methodically going through those cases, one by one, to put them right.
So, the Repair Team does exist and has about 1,400 DWP staff working for it. Since then, reports have come to light of the unit’s work. And people are already flagging concerns over it.
A “hit squad”
The website rightsnet is a social security forum and news site. Among others, it’s used by welfare advisers from charities like Citizens Advice Bureau to share information and best practice. It’s there that a discussion among advisers has started over the Repair Team. People are talking about clients who the unit has taken money from.
One Citizens Advice advisor called it a “hit squad”. Others shared examples of cases where the Repair Team had got involved. One claimant had to pay back over £4,000. The DWP told another claimant that it had overpaid them by nearly £14,000 – and they had to pay this back.
People are already questioning the legality and procedural correctness of the Repair Team’s actions. For example, the claimant hit with a £4,000 bill asked the DWP for a Mandatory Reconsideration of its decision. It didn’t grant them one. So, the Citizens Advice advisor has taken the claimant’s case straight to the Tribunal Service. This case points to the potential wider problems with the Repair Team.
Ignoring the rules? Or no rules at all?
Some of the Citizens Advice advisors think the DWP is ignoring or not following legislation; that is that it’s acting unlawfully. As the DWP claimed, people not having to provide physical proof (verify) parts of their claim was in line with Covid-19 emergency legislation; as was the DWP saying that it would be checking people’s claims eventually.
An FOI has shown that the DWP appears to either not know, or is – as one Citizens Advice advisor put it – ‘refusing to answer’ exactly what legislation its referring to. Because, in response to an FOI, it pointed to coronavirus legislation which makes no mention of the easing of verification processes. So, The Canary searched for the correct legislation. But it appears not to exist. As Elliot Kent from the charity Shelter noted on rightsnet, the easement of the claimant verification process:
was not based on any new statutory power or decision making process; it was just updated guidance.
So, if there was no coronavirus legislation for claimants being able to claim Universal Credit without providing evidence, under what laws is the DWP now trying to recover overpayments from people?
Grey areas
This is where the Repair Team appears to be treading on thin ice. Because it seems to be flouting existing rules. As Kent pointed out:
where DWP has simply failed to request evidence which it now considers appropriate, it is difficult to see what legal basis exists for the awarding decisions to be revised if that evidence is not now provided…
Additionally, whilst the DWP is entitled to request evidence in relation to a past period, the failure to provide that evidence does not, of itself, entitle the DWP to revise the award or generate an overpayment.
Unlawful actions?
He then went further, highlighting the fact that the Social Security Administration Act 1992:
authorises the recovery of amounts in excess of entitlement (i.e. overpayments). What it does not do is to authorise revision of decisions so as to change the claimant’s entitlement and therefore create an overpayment. If the underlying entitlement decision has not been lawfully revised, then there is no payment in excess of entitlement so there is no overpayment to recover.
In other words, the DWP cannot claw money back from claimants by simply changing their social security award. That is, the DWP should be following the rules around changes of circumstance, reviews, Mandatory Reconsiderations, and so on. Instead, it’s simply telling claimants their awards are wrong, changing them, and then hitting them with an overpayment bill.
Kent did highlight one instance where this may not be the case – in terms of, for example, a claimant claiming they didn’t have capital over £16,000 when they actually did. But even with this, he noted that the regulations state:
the failure to provide the information could provide sufficient grounds to end the entitlement going forward but not to create an overpayment; however the claimant actually possessing the capital may provide a basis for revision of the earlier entitlement decisions and the imposition of an overpayment.
Moreover, it appears that the DWP is going back on a pledge it previously made.
Backtracking on pledges
Legally, the DWP is allowed to collect overpayments that are its fault. But in 2011, it said it didn’t have to do this.
At the time, the process of starting Universal Credit was in motion. In May 2011, former DWP minister Chris Grayling gave evidence to parliament’s Public Bill Committee. He said that for overpayments which were the DWP’s fault (known as “official error”):
The practical reality is that we do not have to recover money from people where official error has been made, and we do not intend, in many cases, to recover money where official error has been made. There will be an absolutely clear code of practice that will govern the circumstances in which recovery action will or will not be taken, to ensure consistent, considered decision making.
Fast forward to August 2021.
Millions in mistakes
The DWP revealed in an FOI that between 1 April 2020 and 31 March 2021 the DWP made a staggering 337,000 overpayments where the mistake was its own. The value of these was over £228m. But the DWP also revealed that it only waived around 10 of the 337,000 overpayment recoveries. This is despite what its former minister told parliament in 2011. The value of these waivers was £22,000. So, that’s 0.0096% of overpayments where the DWP was at fault. Moreover, it seems that claimants have a right to request a waiver. But as head of policy at the charity Advice NI Kevin Higgins noted, there seems to be a lack of awareness around this.
The DWP says…?
The Canary asked the DWP for comment. A spokesperson told us:
At the onset of the pandemic we rightly suspended certain verification processes as we could no longer see customers face-to-face. However, we made customers aware that we may return to seek this verification in the future.
If claimants have been paid money that they are not entitled to, then it is right that we seek to correct this on behalf of the taxpayer, whilst also offering support to ensure that any repayments are affordable.
So, what can we do?
A potential class action?
The campaign groups Black Triangle and Disabled People Against Cuts (DPAC) are asking for evidence of the situation. They said they’re:
calling for evidence regarding retrospective Overpayments. Have you received a letter telling you you have been overpaid either from DWP or HMRC since you claimed or moved to Universal Credit?
If so can you please contact us… with evidence of overpayment and your contact details for a potential class action to take the DWP or HMRC challenge to court.
It seems that the DWP has been in chaos since the pandemic hit. But what’s really going on here?
Chaos or cruelty?
Is the DWP now desperately trying to catch up with the millions of additional claims it fast-tracked, and therefore the Repair Unit is carrying out its duties without realising it’s not following basic rules?
Or is it intentionally playing fast and loose with legislation; doing so in an attempt to claw-back as much of its budget as possible? DWP spending on Universal Credit went up to over £38bn in 2020/21 compared to just over £18bn 2019/20. This is an increase of around 111%.
Either way, the DWP appears to be penalising claimants without following the law. Not that this is new – as the department has repeatedly been in court in recent years. But as always – it’s people who can least afford it which end up suffering.
Featured image via VideoBlogg Productions/The Canary and Wikimedia
