The Social Security (Payments on account, Overpayments and Recovery) Regulations 1988

PART III U.K. OFFSETTING

Offsetting prior payment against subsequent award U.K.

5.—(1) Subject to [F1 paragraphs (1A)[F2 , (2A) and (6)] and] regulation 6 (exception from offset of recoverable overpayment), any sum paid in respect of a period covered by a subsequent determination in any of the cases set out in paragraph (2) shall be offset against arrears of entitlement under the subsequent determination and, except to the extent that the sum exceeds the arrears, shall be treated as properly paid on account of them.

[F3 (1A) In paragraph (1) the reference to “any sum paid” shall, in relation to tax credit, include a reference to any amount or calculation of tax credit payable in respect of a period prior to the date of the subsequent determination, which is included in a start notification given by the Board to an employer, and for the payment of which the employer remains responsible.]

(2) Paragraph (1) applies in the following cases—

• Case 1: Payment under an award which is revised, [F4 superseded] or varied Where a person has been paid a sum by way of benefit [F5 or by way of a shared additional pension under section 55A [F6 or 55AA] of the Contributions and Benefits Act] under an award which is subsequently varied on appeal or revised [F7 or superseded].

• Case 2: Award or payment of benefit in lieu Where a person has been paid a sum by way of benefit under the original award and it is subsequently [F8 decided, on a revision, supersession or appeal], that another benefit [F9 or, as the case may be, universal credit] should be awarded or is payable in lieu of the first.

• Case 3: Child benefit and severe disablement allowance Where either—

  (a)

  a person has been awarded and paid child benefit for a period in respect of which severe disablement allowance[F10 , employment and support allowance for those persons with limited capability for work in relation to youth in accordance with paragraph 4 of Schedule 1 to the Welfare Reform Act 2007,] [F11 or incapacity benefit for persons incapacitated in youth in accordance with section 30A(1)(b) and (2A) of the Contributions and Benefits Act] is subsequently determined to be payable to the child concerned; or

  (b)

  severe disablement allowance[F12 , employment and support allowance for those persons with limited capability for work in relation to youth in accordance with paragraph 4 of Schedule 1 to the Welfare Reform Act 2007,] [F11 or incapacity benefit for persons incapacitated in youth in accordance with section 30A(1)(b) and (2A) of the Contributions and Benefits Act] is awarded and paid for a period in respect of which child benefit is subsequently awarded to someone else, the child concerned in the subsequent determination being the beneficiary of the original award.

• Case 4: Increase of benefit for dependant Where a person has been paid a sum by way of an increase in respect of a dependent person under the original award and it is subsequently determined that that other person is entitled to benefit for that period, or that a third person is entitled to the increase for that period in priority to the beneficiary of the original award.

• Case 5: Increase of benefit for partner Where a person has been paid a sum by way of an increase in respect of a partner (as defined in regulation 2 of the Income Support Regulations) and it is subsequently determined that that other person is entitled to benefit for that period.

[F13 (2A) In paragraph (2), Case 2 shall not apply where either—

(a) the sum paid under the original award, or

(b) the subsequent decision on the revision, supersession or appeal,

referred to in that Case (but not both) is or relates to tax credit.]

(3) Where an amount has been deducted under regulation 13(b) (sums to be deducted in calculating recoverable amounts) an equivalent sum shall be offset against any arrears of entitlement of that person under a subsequent award of income support[F14 , or state pension credit][F15 , or income-based jobseeker’s allowance] [F16 or an income-related employment and support allowance] for the period to which the deducted amount relates.

(4) Where child benefit which has been paid under an award in favour of a person (the original beneficiary) is subsequently awarded to someone else for any week, the benefit shall nevertheless be treated as properly paid if it was received by someone other than the original beneficiary, who—

(a) either had the child living with him or was contributing towards the cost of providing for the child at a weekly rate which was not less than the weekly rate under the original award, and

(b) could have been entitled to child benefit in respect of that child for that week had a claim been made in time.

(5) Any amount which is treated under paragraph (4) as properly paid shall be deducted from the amount payable to the beneficiary under the subsequent award.

[F17 (6) Subject to regulation 6, any sums under—

(a) Schedule 5 or 5A to the Contributions and Benefits Act (pension increases or lump sum where entitlement to retirement pension or shared additional pension is deferred); or

(b) Schedule 1 to the Social Security (Graduated Retirement Benefit) Regulations 2005 (increases or lump sum where entitlement to graduated retirement benefit is deferred),

[F18 (c) sections 8 or 9 of the Pensions Act 2014; or

(d) Regulations under section 10 of that Act which make provision corresponding or similar to sections 8 or 9 of that Act,]

paid pursuant to a decision which is subsequently revised under section 9 of the Social Security Act 1998, superseded under section 10 of that Act or overturned on appeal, shall be offset against any sums due under the subsequent determination and, except to the extent that the sum exceeds the amount now due, shall be treated as properly paid on account of it.]

Textual Amendments

F1 Words in reg. 5(1) added (5.10.1999 with effect in accordance with reg. 1(2)) by The Tax Credits (Payments on Account, Overpayments and Recovery) (Amendment) Regulations 1999 (S.I. 1999/2571), regs. 1(1), 7(2)

F2 Words in reg. 5(1) substituted (6.4.2006) by Social Security (Deferral of Retirement Pensions etc.) Regulations 2006 (S.I. 2006/516), regs. 1, 6(a)

F3 Reg. 5(1A) inserted (5.10.1999 with effect in accordance with reg. 1(2)) by The Tax Credits (Payments on Account, Overpayments and Recovery) (Amendment) Regulations 1999 (S.I. 1999/2571), regs. 1(1), 7(3)

F4 Word in reg. 5(2) substituted (5.10.1999 with effect in accordance with reg. 1(2)) by The Tax Credits (Payments on Account, Overpayments and Recovery) (Amendment) Regulations 1999 (S.I. 1999/2571), regs. 1(1), 7(4)(a)

F5 Words in reg. 5(2) inserted (6.7.2005) by Social Security (Shared Additional Pension) (Miscellaneous Amendments) Regulations 2005 (S.I. 2005/1551), regs. 1(1)(a), 8 (with reg. 10)

F6 Words in reg. 5(2) inserted (6.4.2016 coming into force in accordance with art. 1(2)(b)) by The Pensions Act 2014 (Consequential, Supplementary and Incidental Amendments) Order 2015 (S.I. 2015/1985), arts. 1(2)(b), 11(3)(a)

F7 Words in reg. 5(2) substituted (5.10.1999 with effect in accordance with reg. 1(2)) by The Tax Credits (Payments on Account, Overpayments and Recovery) (Amendment) Regulations 1999 (S.I. 1999/2571), regs. 1(1), 7(4)(b)

F8 Words in reg. 5(2) substituted (5.10.1999 with effect in accordance with reg. 1(2)) by The Tax Credits (Payments on Account, Overpayments and Recovery) (Amendment) Regulations 1999 (S.I. 1999/2571), regs. 1(1), 7(4)(c)

F9 Words in reg. 5(2) inserted (8.4.2013) by The Social Security (Overpayments and Recovery) Regulations 2013 (S.I. 2013/384), regs. 1(2)(c), 31(3)

F10 Words in reg. 5(2) inserted (28.6.2010) by Social Security (Miscellaneous Amendments) (No.3) Regulations 2010 (S.I. 2010/840), regs. 1, 3

F11 Words in reg. 5(2) inserted (6.4.2001) by The Social Security (Incapacity Benefit) Miscellaneous Amendments Regulations 2000 (S.I. 2000/3120), regs. 1, 5 (with reg. 6)

F12 Words in reg. 5(2) inserted (28.6.2010) by Social Security (Miscellaneous Amendments) (No.3) Regulations 2010 (S.I. 2010/840), regs. 1, 3

F13 Reg. 5(2A) inserted (5.10.1999 with effect in accordance with reg. 1(2)) by The Tax Credits (Payments on Account, Overpayments and Recovery) (Amendment) Regulations 1999 (S.I. 1999/2571), regs. 1(1), 7(5)

F14 Words in reg. 5(3) inserted (6.10.2003) by State Pension Credit (Consequential, Transitional and Miscellaneous Provisions) Regulations 2002 (S.I. 2002/3019), regs. 1(2)(b), 24(5), 24(6)(a)

F15 Words in reg. 5(3) inserted (7.10.1996) by The Social Security and Child Support (Jobseeker’s Allowance) (Consequential Amendments) Regulations 1996 (S.I. 1996/1345), regs. 1, 23(5), 23(6)(a)

F16 Words in reg. 5(3) inserted (27.10.2008) by Employment and Support Allowance (Consequential Provisions) (No.2) Regulations 2008 (S.I. 2008/1554), regs. 1(2)(b), 52(5)

F17 Reg. 5(6) added (6.4.2006) by Social Security (Deferral of Retirement Pensions etc.) Regulations 2006 (S.I. 2006/516), regs. 1, 6(b)

F18 Reg. 5(6)(c)(d) inserted (6.4.2016 coming into force in accordance with art. 1(2)(b)) by The Pensions Act 2014 (Consequential, Supplementary and Incidental Amendments) Order 2015 (S.I. 2015/1985), arts. 1(2)(b), 11(3)(b)

Modifications etc. (not altering text)

C1 Reg. 5(2) modified (1st June, 5th July, 6th September, 5th and 18th October and 29th November 1999) by the Social Security Act 1998, 1999/1958, 2422, 2739, 2860 and 3178, Sch.9 para. 3

Exception from offset of recoverable overpayment U.K.

6.  No amount may be offset under regulation 5(1) which has been determined to be a recoverable overpayment for the purposes of section 53(1) of the Act.