Legal information briefings

Legal information briefings are directed towards advisers and others who support social security claimants...

Recovery of overpayments arising from 'official error': current problems and recommendations for change

A change in policy brought about through the welfare reform process in Great Britain and Northern Ireland means that most benefit overpayments caused by ‘official error’ are recoverable.

A social security claimant who is subject to a benefit overpayment may, in exceptional circumstances, apply for a discretionary waiver. This is designed to ensure that claimants do not experience detriment to their health or severe financial hardship as a result of the recovery of the overpayment.

Law Centre NI is concerned that existing safeguards are insufficient to protect against unfairness in situations involving overpayments and official error. Law Centre NI notes that the Department for Communities (the Department) is due to update its guidance on benefit overpayments. This is an important opportunity to address the deficiencies of the current system and ensure that discretionary waivers can be obtained on grounds of health/financial hardship orunfairness. This briefing outlines a number of recommendations for reform to ensure the system works better for everyone.

For more information, see the briefing paper.

Pathways out of migrant destitution through a change in immigration status

This paper is aimed at advisers and support workers working with migrants who are experiencing destitution and homelessness.

Immigration status can both cause and compound destitution. Changing a person’s immigration status can create an entitlement to social security and housing and so should always be considered by advisers.

This paper identifies a number of immigration applications that advisers should consider as potential pathways out of destitution. It also outlines a number of interim accommodation options that might provide temporary relief while immigration options are being explored.

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Briefing: Complaints about Assessments for PIP and ESA - Oct 2019

When a claim is made for ESA or PIP, the claimant will normally undergo an assessment of their functional ability as part of the application process. If there is dissatisfaction with the treatment received as part of making an application a complaint may be raised.

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Chief Social Commissioner Decision in Northern Ireland has Significant Implications for GB Claimants

A Law Centre NI case around the auditing and amending of PIP assessment reports could have significant implications for thousands of claimants in Great Britain.

Law Centre NI have successfully worked to ensure all evidence of the auditing process of assessment reports is made available to to appellants and tribunals in Northern Ireland. This work has led to a significant policy change in Northern Ireland.

Now an important decision by the Chief Social Security Commissioner has confirmed this is an equality of arms issue and that:

"[I]t is a matter of fairness to disclose there has been an audit and amendment of a report and it may not matter that the disclosure may not make any difference to the outcome of the appeal."

Although this audit information is now available as standard in NI appeals it continues to be absent from GB appeal papers.

The Chief Social Security Commissioner has also clarified that:

"The delay in the completion of the report may be enhanced when the report is subject to the audit process. I agree with Mr McCloskey that this has the potential to be a factor to be taken account of when assessing the weight to be given to an individual report but much will turn on the individual circumstances of a case."

A copy of the decision can be found here.

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Briefing: Overpayments in Social Security and the Discretionary Waiver - Oct 2019

Under the legacy benefit system the recovery of overpaid benefits largely depended on the Department for Communities (DfC) being able to show that the claimant caused the overpayment through the failure to disclose or the misrepresentation of a material fact. As a result, if the department caused the overpayment then it was non-recoverable.

The law relating to the recovery of overpayments has been changed with particular repercussions for new benefits such as universal credit and welfare supplementary benefits. For these benefits, the department just needs to demonstrate that the claimant has been overpaid. The overpaid amount is then recoverable even if DfC caused the overpayment.

Advisers should note, however, the claimant still has the option to ask DfC to exercise its discretion and decide to waive recovery due to the claimant’s circumstances.

Download (PDF 349.568 KB)

Personal Injury Compensation and Social Security Benefits (September 2017)

The amount of capital that a person possesses affects the amount of benefit to which they are entitled to. The rules on receipt of personal injury compensation are complicated and treated distinctly from other forms of capital.

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Mandatory Reconsideration and Direct Lodgement of Appeals (May 2016)

These important changes affect anyone challenging a social security decision made on or after 23 May 2016. However, they will potentially have the biggest impact on those in receipt of ESA or claiming ESA who receive an unfavourable decision.

Download (PDF 182.82 KB)