legal info - overissues

[uncle peter]

The following is perhaps useful info to anyone who has had recovery of overissue action started against them. A bit of research has unearthed some interesting stuff. The regulations state that any successful appeal against overissue must show that the person received the payment in good faith and it was reasonable to do so.

The background to this is that the law differentiates between money payed under a mistake of fact and under a mistake of law, with good faith being a defence. This is now not applicable. The house of lords overruled this defence stating any defence against recovery should be found under the law of restitution.

Current regs, however, make no mention of this and do not list any available defence under restitution (funny old thing). Furthermore, duff advice is still being given out about compiling an appeal with ref to good faith and reasonableness. If an appeal is framed in this way it will fail as it is not a legal defence.

Having hit the law books again there is a defence available which is a lot easier to prove - the defence of change of position. In other words if it can be shown that the money was received and you have changed your position in reliance on that money it is not recoverable in law. Obviously it must be reasonable for you to do so.

Apologies for the dry topic but it is info that is not widely available nor understood by the people who are supposed to advise us. hope it is of some use to someone.

[Ham Phisted]

Good timing. I'm having a battle with Binnsworth at the mo' over an overissue. They've messed up my pay statement so much over the last few months it's going to take the brains of an archbishop to work it out. Thieving barstewards.

[slj]

In such cases the general rule was that if the overpayment was so obvious (paid £100,000 one month) then it was returnable.

However, if the payment was £2,100 instead of £2,075 or thereabouts and would not be an obvious mistake, the money was not usually recoverable if the recipient had altered his or her position and spent the money.

The military may have different rules

Hope this helps

[Talking Radalt]

There is a God after all.

[uncle peter]

...and another thing. QR's couch repayment in terms of "are invited to... repay". this is because the people making first instance decision are not legally qualified to do so (although they will (should) have taken advice from DLS) the only true way to legally force you to repay that cash is via application to the courts... with the caveat "decisions of the AFb should not be taken lightly". anyhoo, brain hurting from too much bookwork. if i dredge up anything useful ill put it here.