Devolved Social Security benefits - debt recovery - transfer of jurisdiction: consultation

2. Recovery of overpayments in the Scottish Social Security System

2.1 There are two different types of payment made to individuals in the Scottish Social Security System. There are one-off benefits such as Best Start Grant Pregnancy and Baby Payment, Best Start Grant Early Learning Payment and Best Start Grant School Age Payment, Funeral Support Payment, Young Carer Grant, Job Start Payment, Winter Heating Assistance and Cold Spell Heating Assistance. These benefits are mainly in the form of one-off or lump sum payments and grants.

2.2 Then there will be recurring benefits such as Child Disability Payment, Adult Disability Payment, Pension Age Disability Payment, Scottish Carer's Allowance, Severe Disablement Allowance and Industrial Injuries Benefits. These benefits will involve regular payments to individuals who will have an ongoing relationship with Social Security Scotland. Eligibility is generally more complex and may involve evidence gathering and more sophisticated decision-making. Individual's circumstances may change over time which may require adjustments to their payments.

2.3 If an overpayment has been identified in either type of benefit, the first action Social Security Scotland will take is to decide whether the individual is liable to repay. An individual will be liable if an overpayment arose due to their error or where an individual could reasonably be expected to have noticed an error made by Social Security Scotland.

2.4 If it is determined that the overpayment is recoverable, and where financial and other considerations have deemed recovery to be appropriate, Social Security Scotland will always aim to agree a schedule of repayments with the individual through a variety of affordable payment methods. Where agreement cannot be reached and the individual has no recurring entitlement to benefits, then the only means for Social Security Scotland to recover the debt is through raising an action for payment in the sheriff court. At this stage the individual can defend an action for the recovery of the overpayment.

2.5 Where the individual has a recurring benefit, Social Security Scotland can recover the overpayment through deductions of future payments. The individual will be informed of this decision by Social Security Scotland and they will be able to request a re-determination if they are not content. If they are still dissatisfied with the decision they can then appeal the decision to the First-tier Tribunal. The First-tier Tribunal will consider the case and determine whether Social Security Scotland's decision is reasonable considering all of the facts of the case.

2.6 Similarly, if an overpayment has arisen in a one-off benefit type but the individual is also a recipient of a recurring benefit then deductions can be taken from the recurring benefit to recover the debt for the one-off benefit.

2.7 In circumstances where an individual that received an overpayment was a recipient of a recurring benefit that has been stopped, deductions from future payments will not be possible. Such individuals will be able to appeal the determination that they are no longer entitled to the benefit, but if it is determined that there is an overpayment and a payment agreement cannot be reached liability cannot be challenged in the appeal and the debt can only be recovered (and liability challenged) through the sheriff court process.

2.8 Therefore, through the 2018 Act there are two routes to challenge whether you have to pay the overpayment back. Where civil recovery is sought through the sheriff court the individual will be able to contest recovery of the overpayment through the ordinary court process. Where a determination is made about a recurring entitlement or to implement a deduction from a recurring benefit an individual will be able to appeal that decision to a First-tier Tribunal.

Concerns with this system:

• For individuals who do not have a devolved recurring benefit there is no means to defend the action for recovery of the overpayment other than through the sheriff court. Many individuals may choose to make the repayment rather than go through a sheriff court procedure. This may not be consistent with a rights-based approach.

2.9 The process for recovery of overpayments is set out below: