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Discretion in overpayment recovery.

Spicker, Paul


Paul Spicker


R v Secretary of State for Work and Pensions [2023] EWHC 233 (Admin) calls into question at least three aspects of the long-established practice of the Department for Work and Pensions (DWP). The case concerns the DWP’s discretionary power to waive the recovery of overpayments. In former times, the rules governing recovery only rendered claimants liable if they had misrepresented or failed to disclose a material fact. Tax Credits had required low income families to repay substantial amounts of money delivered in error – a process the Ombudsman condemned as 'fundamentally unsuited' to their needs (Parliamentary and Service Ombudsman Citation2007, p. 5). Following this example, in 2013 a general power to recover overpayments from other benefits was introduced, governing Universal Credit, Jobseekers Allowance and Employment and Support Allowance. In the present case, the DWP had 'repeatedly' miscalculated the benefit, and assured the claimant that the payments were correct. The claimant had taken 'all reasonable steps to repeatedly clarify her entitlement and provide information' (para. 1). There was no dispute that the overpayment was the result of official error. The DWP had apologised for 'this profound lapse in service'. The claimant asked the DWP in three separate applications to exercise its discretion to waive repayments, and the DWP refused at every point.


SPICKER, P. 2023. Discretion in overpayment recovery. Journal of social welfare and family law [online], 45(2), pages 184-187. Available from:

Journal Article Type Article
Acceptance Date Apr 20, 2023
Online Publication Date May 25, 2023
Publication Date Jun 30, 2023
Deposit Date Jun 6, 2023
Publicly Available Date Jun 6, 2023
Journal Journal of social welfare and family law
Print ISSN 0964-9069
Electronic ISSN 1469-9621
Publisher Taylor & Francis (Routledge)
Peer Reviewed Peer Reviewed
Volume 45
Issue 2
Pages 184-187
Keywords Overpayments; Universal credit; Fettering discretion; Mandatory reconsideration
Public URL


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