Part IIIOverpayments and adjustments of Benefit

Misrepresentation etc

71Overpayments—general

(1)

Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure—

(a)

a payment has been made in respect of a benefit to which this section applies; or

(b)

any sum recoverable by or on behalf of the Secretary of State in connection with any such payment has not been recovered,

the Secretary of State shall be entitled to recover the amount of any payment which he would not have made or any sum which he would have received but for the misrepresentation or failure to disclose.

F1(2)

Where any such determination as is referred to in subsection (1) above is made, the person making the determination shall F2in the case of the Secretary of State or F3the First-tier Tribunal, and may in the case of F4the Upper Tribunal or a court—

(a)

determine whether any, and if so what, amount is recoverable under that subsection by the Secretary of State, and

(b)

specify the period during which that amount was paid to the person concerned.

(3)

An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it.

(4)

In relation to cases where payments of benefit to which this section applies have been credited to a bank account or other account under arrangements made with the agreement of the beneficiary or a person acting for him, circumstances may be prescribed in which the Secretary of State is to be entitled to recover any amount paid in excess of entitlement; but any such regulations shall not apply in relation to any payment unless before he agreed to the arrangements such notice of the effect of the regulations as may be prescribed was given in such manner as may be prescribed to the beneficiary or to a person acting for him.

F5(5)

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F6(5A)

Except where regulations otherwise provide, an amount shall not be recoverable F7under subsection (1) or under regulations under subsection (4) unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or F8has been revised under section 9 or superseded under section 10 of the Social Security Act 1998.

(6)

Regulations may provide—

(a)

that amounts recoverable under subsection (1) above or regulations under subsection (4) above shall be calculated or estimated in such manner and on such basis as may be prescribed;

(b)

for treating any amount paid to any person under an award which it is subsequently determined was not payable—

(i)

as properly paid; or

(ii)

as paid on account of a payment which it is determined should be or should have been made,

and for reducing or withholding any arrears payable by virtue of the subsequent determination;

(c)

for treating any amount paid to one person in respect of another as properly paid for any period for which it is not payable in cases where in consequence of a subsequent determination—

(i)

the other person is himself entitled to a payment for that period; or

(ii)

a third person is entitled in priority to the payee to a payment for that period in respect of the other person, and for reducing or withholding any arrears payable for that period by virtue of the subsequent determination.

F9(7)

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(8)

Where any amount paid F10... is recoverable under—

(a)

subsection (1) above;

(b)

regulations under subsection (4) F11... above; or

(c)

section 74 below,

it may, without prejudice to any other method of recovery, be recovered by deduction from prescribed benefits.

(9)

Where any amount paid in respect of a F12couple is recoverable as mentioned in subsection (8) above, it may, without prejudice to any other method of recovery, be recovered, in such circumstances as may be prescribed, by deduction from prescribed benefits payable to either of them.

F13(9A)

Regulations may provide for amounts recoverable under the provisions mentioned in subsection (8) above to be recovered by deductions from earnings.

(9B)

In subsection (9A) above “earnings” has such meaning as may be prescribed.

(9C)

Regulations under subsection (9A) above may include provision—

(a)

requiring the person from whom an amount is recoverable (“the beneficiary”) to disclose details of their employer, and any change of employer, to the Secretary of State;

(b)

requiring the employer, on being served with a notice by the Secretary of State, to make deductions from the earnings of the beneficiary and to pay corresponding amounts to the Secretary of State;

(c)

as to the matters to be contained in such a notice and the period for which a notice is to have effect;

(d)

as to how payment is to be made to the Secretary of State;

(e)

as to a level of earnings below which earnings must not be reduced;

(f)

allowing the employer, where the employer makes deductions, to deduct a prescribed sum from the beneficiary's earnings in respect of the employer's administrative costs;

(g)

requiring the employer to keep records of deductions;

(h)

requiring the employer to notify the Secretary of State if the beneficiary is not, or ceases to be, employed by the employer;

(i)

creating a criminal offence for non-compliance with the regulations, punishable on summary conviction by a fine not exceeding level 3 on the standard scale;

(j)

with respect to the priority as between a requirement to deduct from earnings under this section and—

(i)

any other such requirement;

(ii)

an order under any other enactment relating to England and Wales which requires deduction from the beneficiary's earnings;

(iii)

any diligence against earnings.

(10)

Any amount recoverable under the provisions mentioned in subsection (8) above—

(a)

if the person from whom it is recoverable resides in England and Wales and the county court so orders, shall be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court; and

(b)

if he resides in Scotland, shall be enforced in like manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

F14(10A)

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F14(10B)

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(11)

This section applies to the following benefits—

(a)

benefits as defined in section 122 of the Contributions and Benefits Act;

F15(aa)

F16subject to section 71A below, a jobseeker’s allowance;

F17(ab)

state pension credit;

F18(ac)

F19an employment and support allowance;

F20(ad)

personal independence payment;

(b)

F21... , income support;

F22(c)

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F22(d)

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(e)

any social fund payments such as are mentioned in section 138(1)(a) or (2) of the Contributions and Benefits Act; and

F23(ea)

health in pregnancy grant; and

(f)

child benefit.

F24(12)

In this section, “couple” has the meaning given by section 137(1) of the Contributions and Benefits Act.

F2571ZAOverpayments out of social fund

(1)

Subject to subsection (2) below, section 71 above shall apply in relation to social fund payments to which this section applies as it applies in relation to payments made in respect of benefits to which that section applies.

(2)

Section 71 above as it so applies shall have effect as if—

(a)

in F26... subsection (5A), for the words “reversed or varied on an appeal or has been revised under section 9 or superseded under section 10” there were substituted the words “revised on a review under section 38”;

F27(b)

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(c)

subsections (7), (10A) and (10B) were omitted.

F28(2A)

Subsection (9A) of section 71 above as it so applies shall have effect as if the reference to amounts recoverable under the provisions mentioned in subsection (8) of that section were to amounts recoverable under subsections (1) and (4) of that section by virtue of subsection (1) above.

(3)

This section applies to social fund payments such as are mentioned in section 138(1)(b) of the Contributions and Benefits Act.