Thematic Note G0132: Overpayment of social welfare

Years: 2009, 2021

Type of Social Welfare: Overpayment of social welfare

Deciding Bodies: Appeals Officer, Social Welfare Appeals Office

Theme: Overpayment of Social Welfare – General Issues

Period of Analysis: SWAO Annual Reports 2009-2021  

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Reviews

Casebase No. Case G0123

Summary of the relevant law:

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act. If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid. See G0133 for further details.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).)

The other circumstances where an overpayment may arise are covered by sections 336, 336(a) and 336(b) of the Social Welfare Consolidation Act 2005 (as amended).

Examples of this category of overpayment are:

  • double cashing, for example a person reports that she or he did not receive a payment due, a duplicate is issued and both payments are cashed by the person;
  • impersonation, for example a person makes a claim assuming the identity of another person;
  • cashing after death, for example a relative continues to cash a pension or allowance after the death of the person entitled to it.

Finally, the rules relating to the how the Department can recover an overpayment of social welfare are in Statutory Instrument No. 349/2005 Social Welfare (Recovery of Overpayments) Regulations, the Department’s Operational Guidelines on Management of Customer Overpayments and Recovery of Customer Debt.  and more information is available through Citizen’s Information.

Observations on appeal outcomes in SWAO Case Studies:

An appeal against an overpayment can be made to the Social Welfare Appeals Office (SWAO). A person has 21 days to appeal and details on appeals are available on the SWAO website.

To assist with appeals, we have drawn together the case studies relating to overpayments in the SWAO Annual Reports below and have made some observations based on our review of the case studies in Annual Reports dating from 2009 to 2021.

Below we set out observations under the following headings –

  • Initial Observations
  • Error by the Department

We have separate Thematic Reports on Casebase relating to the following: –

  • Fraud (Section 302(a)) (G0133)
  • Cohabitation (G0134)
  • Recovery of overpayment from the Estate of the Deceased (G0135)

Initial Observations –

  • Alleged ignorance of the requirements or criteria of a social welfare payment is generally disregarded, in particular where a claimant was explicitly made aware of the requirements. (See Case Study J5 2018/54 State Pension Non-Contributory Oral Hearing below)
  • The SWAO will have access to information from electoral registers, vehicle registrations, tenancies, births register and Social Welfare Inspectors in assessing the facts pertaining to the case.
  • There is a strict obligation to inform the Department of changes to your circumstances where in receipt of social welfare. This includes changes to your financial circumstances, living arrangements, absence of the State, periods where a child or caree is not residing in the home etc.  
  • If a change in circumstances has been notified to the Department, or the Department has made a clear error, an Appeals Officer may reduce or cancel an overpayment. This discretion arises under Article 246(1) of Part 9 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 – S.I. 142 of 2007 (as amended) which provides that the amount of an overpayment to be repaid may be reduced or cancelled where the overpayment arose because of: (i) a failure by the Department to act within a reasonable period on information which was provided by or on behalf of the person concerned; or (ii) an error by the Department. 
  • Other than in cases of fraud, an Appeals Officer can change the effective date when an overpayment is deemed to have arisen, having regard to all the circumstances of the case. This may result in no overpayment arising.
  • Decisions involving the assessment of means are very fact-dependent and will be governed by all circumstances relating to the individual case.

The Section 318 reviews of decisions of Appeal Officers by the Chief Appeals Officer are of particular note and show the following:

  • The obligation to notify the Department of a change of circumstances may be discharged if the relevant facts are disclosed in an application for a separate benefit.
  • A notification of relevant information to another Government body (e.g. Tusla) does not equate to the disclosure of that information to the Department.
  • Where an entitlement is disallowed, limited or withdrawn on the basis of cohabitation, the onus is on the Department to establish that cohabitation (i.e. in an intimate and committed relationship) exists and not the appellant to show they are not cohabiting with the nominated person. In putting together its case, the Department must follow its own Guidelines on Investigating Cohabitation and consider a range of evidence of cohabitation to make such a finding. See Cohabitation below.
  • In a revised decision, a Deciding Officer much set out the relevant provision in the legislation under which the decision is made and the amount of the overpayment amounts in order to respect an appellant’s right to natural justice and fair procedures.  
  • A lack of a review by the Department may be taken into account in circumstances where they failed to act on information (e.g. a clear instruction of a Social Welfare Inspector’s report) but not generally in other circumstances.

Error by the Department

Whether an error by the Department will result of the overpayment being reduced or set aside will depend on the circumstances of the case. See Case Study I2 2017/40 Jobseeker’s Allowance Summary Decision for an example of where the level of engagement with Department by the Appellants and circumstances surrounding the error were sufficient to reduce overpayment to nil. It states:-

“The couple had numerous interactions with the Intreo Centre over the course of their claims and always went there together when issues or queries arose. Their ongoing engagement with various activation measures was also mentioned. The appellant also got statements of payments received on four occasions for submission to the university where she studied in the UK. The letter of appeal also states that the couple had never claimed separately before, and they were not aware of the level of payment each would receive. Given their ongoing engagement with the Intreo Centre, they assumed they were receiving their correct entitlement.”

Also level of communication over the course of the relevant period with Department in  I3 2017/46 Supplementary Welfare Allowance Summary Decision was such that error of Department and overpayment effectively reduced to nil.

In Case Study J1 2018/35 Working Family Payment Oral Hearing, the Appeals Officer concluded that:-

“as there had been no change in the appellant’s circumstances as set out in the governing legislation, the appellant continued to be entitled to Working Family Payment for 52 weeks from the commencement of that claim. The Appeals Officer considered the retrospective examination of the hours worked from January 2015 to June 2015 as erroneous and unfair. With regard to the continuing entitlement from June 2015 to June 2016, the Appeals Officer concluded that the same principle applied. In the absence of any evidence to the contrary on the file, the Appeals Officer had to assume that at the time of renewal of Working Family Payment in June 2015, the appellant was found to be in compliance with the conditions for award, that this was likely to continue for 3 months and was payable for 52 weeks to June 2016.”

In Case Study J3 2018/49 Supplementary Welfare Allowance Summary Decision, the Appellant failed to tell the Department that she had taken up a training course while on SWA. It was on the recommendation of her GP as part of medical and psychological treatment and increased her employment possibilities.  The Appeals Officer noted that “under Section 190 (3) of the 2005 Act the Department has discretion to grant Supplementary Welfare Allowance to persons attending a course of study “in a case where there are exceptional circumstances.” This concession did not appear to have been considered by the Department in this instance. The Appeals Officer considered that the evidence submitted by the appellant in support of her appeal could be regarded as constituting “exceptional circumstances” and the appeal was allowed.”

Relevant Case Studies of the SWAO Annual Reports 2009-2021

A.2009 
B.2010 
1.2010/15 Disability AllowanceQuestion at issue: Over payment
C.2011 
D.2012 
1.2012/15 One Parent Family PaymentQuestion at issue: Overpayment
2.2012/22 Survivor’s (Contributory) PensionQuestion at issue: Overpayment
E.2013 
F.2014 
G.2015 
1.2015/15 Carer’s benefit & Maternity BenefitQuestion at issue: Concurrent payment of benefits
2.2015/21 State Pension (Non-Contributory)Question at issue: means and overpayment assessed following review
3.2015/22 & 2015/23 Unspecified payment in respect of two appellantsQuestion at issue: Cohabitation
4.2015/24 State Pension Non-contributoryQuestion at issue: Claim against the deceased pensioner’s estate
5.2015/25 State Pension (Non-contributory)Question at issue: Claim against the deceased pensioner’s estate
H2016 
1.2016/17 Disability AllowanceQuestion at issue: Eligibility (medical)
2.2016/23 Job Seeker’s AllowanceQuestion at issue: Eligibility (retrospective assessment of needs)
3.2016/28 State Pension (Non-contributory)Question at issue: Eligibility (revised decision as to means)
4.2016/318/34 Carer’s allowanceQuestion at issue: Overpayment assessed
5.2016/318/36 One parent family paymentQuestion at issue: Means and cohabitation
I2017 
12017/10 One-Parent Family Payment Oral hearingQuestion at issue: Overpayment whilst child in care
22017/40 Jobseeker’s Allowance Summary DecisionQuestion at issue: Overpayment (department error)
3.2017/46 Supplementary Welfare Allowance Summary DecisionQuestion at issue: Eligibility (rent supplement and overpayment)
4.2017/49 State Pension (Non-Contributory) Oral hearingQuestion at issue: Claim against the State
5.2017/51 State Pension (Contributory) Summary DecisionQuestion at issue: Overpayment (qualified adult)
6.2017/318/62 Jobseeker’s AllowanceQuestion at issue: Whether an Appeals Officer had erred when partially allowing an appeal in relation to an overpayment
7.2017/318/65 Disability Allowance (DA) and One Parent Family (OPF)Question at issue: whether the appellants were cohabiting
8.2017/318/68 State Pension (Non-Contributory)Question at issue: overpayment assessed (means)
9.2017/318/69 State Pension (Non-Contributory)Question at issue: overpayment assessed (means)
J2018 
1.2018/35 Working Family Payment Oral HearingQuestion at issue: Eligibility (hours worked)
2.2018/39 Jobseeker’s Allowance Summary DecisionQuestion at issue: eligibility (whether the person was unemployed)
3.2018/49 Supplementary Welfare Allowance Summary DecisionQuestion at issue: Eligibility and overpayment
4.2018/53 State Pension (Non-Contributory) Summary DecisionQuestion at issue: Eligibility (means and overpayment)
5.2018/54 State Pension Non-Contributory Oral HearingQuestion at issue: Eligibility (means and overpayment)
6.2018/318/66 Carer’s AllowanceQuestion at issue: Eligibility (care provided)
7.2018/318/67 State Pension (Non-Contributory)Question at issue: Absence from state
K.2019 
1.2019/03 Child Benefit Summary Decision  Question at issue: Qualified child- ordinarily resident
2.2019/44 Jobseeker’s Allowance Summary DecisionQuestion at issue: Eligibility (full-time education)
3.2019/50 Farm Assist Summary DecisionQuestion at issue: Overpayment
4.2019/57 Widower’s (Non-Contributory) Pension Oral HearingQuestion at issue: Entitlement-co-habiting
L.2020 
1.2020/01 Child Benefit – Qualified Person  Question at issue Qualified person
22020/49 State Pension (Contributory) 
M.2021 
1.2021/01 Child Benefit – Qualified Child  Question at issue Qualified child