The DWP is chasing the poorest for millions of pounds of its own mistakes - but one mum fought back

Stock woman in silhouette. Pexels
'K,' who cannot be identified, was pursued for more than £8k in debt caused by officials' mistakes (stock photo) Credit: Pexels

By Talia Shadwell, ITV News content producer

A single mum of two disabled children has fought back against the government after it tried to force her to pay more than £8,000 in benefits debt over its own mistakes.

When the government told 'K', from England's south west, she owed them money, she was “worried to death.”  

Where, wondered K, would she find thousands of pounds that she simply didn't have?

She was already using foodbanks, while working part-time so she could care for her two adult children who live with ADHD, autism, and mental health issues.When she received the letter from the Department of Work and Pensions (DWP) demanding £8623.20 relating to benefits calculations she had repeatedly checked and confirmed were correct nearly two years earlier, it sent her into a tailspin.

Already in her overdraft, financially struggling to keep her head above water, she struggled to get hold of anyone on the phone to tell her what it meant.

At that time, she had no idea she was one of hundreds of thousands of people being chased by the DWP for hundreds-of-millions of pounds in benefits overpayments - sometimes from years ago - that had been mistakenly paid due to the department's own errors. 

Despite the DWP admitting her Universal Credit allowance had been overpaid in 2019 due to its own mistakes, it refused to waive the debt, despite her household's vulnerable circumstances. So K, who cannot be named for legal reasons, decided to take on the government in a court case expected to cause a ripple effect for vulnerable people around the country.

“I had provided everything that I needed and I felt that this was wrong, I felt it was an injustice,” she told ITV News in an exclusive interview.

In court, the DWP admitted 370,000 claimants had received overpayments classified as ‘official error’ in just one year- costing more than £228 million. 

The Department for Work & Pensions office in London Credit: PA

 The judge in K's case ultimately agreed that she had done everything she was supposed to do to inform the DWP of her change of circumstances, and fit the criteria to have the debt waived.

But her fight left K concerned that very vulnerable people were being pushed into further debt because they didn't know they could challenge the government over its mistakes.“It’s just absolutely wrong. There’s hundreds of thousands of people on benefits and if they’re on Universal Credit they’re on low income, and there’s a reason they’re on benefits or struggling,” she said. Debt charities say the DWP docks the standard allowance portion of Universal Credit by a default 15% a month for claimants without employment, and 25% for claimants in work earning more than £60 a month.

For example, Citizens Advice explains if a payment is reduced by 15% of a claimant's standard allowance of £334.91 a month, their total payment will be reduced by £50.24 until the debt is paid off. This can take many years in some cases.

StepChange warns this system is leaving recipients already struggling "destitute," and forced to rely on foodbanks. 

And K's case is not unique. The government rarely wipes debts when it makes mistakes.

Figures provided to the court showed in 2020/2021, 337,000 Universal Credit official error overpayments were recorded, but just 10 were waived.Figures provided to ITV News under the Freedom of Information Act (FOIA) show the following year, just seven people's benefits debts arising from official errors were wiped, amounting to £76,000 waived.

In the financial year ending 2022, just 27 people had their debt caused by government mistakes waived, a total of £226,000 wiped.In the financial year ending 2023, the DWP received 126 waiver requests for debts arising from official error overpayments, and granted 29, FOIA figures show. The cost of the most recent official error figures will be released next month, the DWP said.

You've been told you owe benefits debt - are you eligible for a waiver?

Can benefits debt be waived?

The government has been forced to reveal the criteria it uses when decided whether to wipe benefits debts due to hardship, after a judge said it was unlawful to keep it a secret. 'K’s' case is being hailed as a landmark win by experts in the field, and has shone a spotlight on the scale of the DWP’s benefits calculation errors. 

The case has forced the department to publicly reveal its benefits overpayment waiver criteria.

Official figures, obtained from the court judgment and by ITV News using the Freedom of Information (FOI) Act, show the DWP presently rarely waives debt – but also that very few people are applying.

The DWP has released the criteria expert lawyers in the field say should now make it easier for benefit claimants to understand how they can apply for a waiver especially when the debt is due to official error. 

The DWP's full Benefit Overpayment Recovery Guide is now available online here.

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Will my benefits overpayment debt be wiped if I'm facing financial hardship?

No, experts say it is unlikely everyone who wants their government debt waived will have their application granted.

But Alexander McColl, from Garden North Court Chambers, which assisted the Public Law Project on K’s case, has written an explanation of when the DWP's waiver guidance could be helpful.

He says K's case has laid the groundwork for waivers in circumstances in which claimants can prove the DWP has breached their ‘legitimate expectations.’ 

Mr McColl said this was likely to include cases where: a benefit claimant has given all relevant information to the DWP; is incorrectly advised by the DWP that they are entitled to keep money they are receiving which they rely, and; that paying back that money would cause unfairness - for example, because the claimant has relied on the advice to their detriment and already spent the money on day to day essentials. 

A tribunal, and the court's judgment in K's case made clear that financial hardship alone would not guarantee that someone should not have to repay overpaid benefits back to the government.

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What is the criteria for asking for benefits debt to be waived?

A tribunal, and the court's judgment in K's case made clear that financial hardship alone would not guarantee that someone should not have to repay overpaid benefits back to the government.

A summary of criteria that could lead to a waiver being granted, as summarised by Garden North Court Chambers, follows: 

  • How the overpayment arose: Has there been a “profound lapse in service,” has the DWP repeatedly miscalculated a benefit entitlement, did it take place over a long period of time, and did the DWP clearly state that the claimant was entitled to the money? 

  • How did the person in debt respond? Was the claimant upfront, did they provide relevant information to the government on time, and take steps to try to check that the payments were correct? 

  • What happened to the overpayment money: Has the overpaid money already been spent, and on what? For instance, was it used on living costs? 

  • Missed opportunities: Did the person miss out on other benefits, grants or funding they may have been eligible grants for, because of the overpayment? 

  • Financial hardship: While this alone is unlikely to justify a waiver being granted, it is considered alongside other factors. Providing household financial statements are recommended to support this claim. 

  • Health and welfare: A waiver should be granted where it is clear from all the evidence available that recovery will have or is having an excessive negative impact on the health and wellbeing of the person or their family. Evidence of this is important, and doesn’t necessarily have to be linked to the debt recovery itself. 

  •  Public interest: The government must consider whether it is in the public interest to recover the debt, taking the debtor’s circumstances into account. It must consider factors including: The DWP’s reputation, the potential public response, legal implications and risk of challenge, and how the DWP has acted in the case. 

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A landmark case

K won her case earlier this year after lawyers helped her take on the Secretary of State for Work and Pensions.  A judge in the case forced the DWP to reveal its benefits overpayment debt waiver criteria – warning the government that it had been unlawful to keep the guide - which could help people appeal their debts - a secret.  The court found ‘K,’ who cannot be identified for legal reasons, should not have to repay £8,623 to the DWP, due to its own repeated errors, in a case legal campaigners believe will shake up the benefits debt system.  

Do you have more information on this story? Please contact us at investigations@itv.com

What happened?K had spoken to the DWP four times after one of her sons began an apprenticeship, to ensure her payments were correct.

DWP staff repeatedly assured her they were, the court heard. 

When the DWP eventually realised its error, it began chasing her for debt repayments, which she said would have taken her many years to pay off.

The money, which she had repeatedly told she was entitled to, had long been spent on her family’s living costs.  After the Secretary of State for Work and Pensions refused three times to waive her debt, K sought relief at a tribunal.

It found there was an overpayment due to the DWP’s official error and she had taken all reasonable steps to avoid it, but it could not overturn the repayment order.   The DWP apologised to K for a “profound lapse in service,” but resolved to continue chasing the money.  She told ITV News how she wrote a pleading letter to the DWP, explaining she was a solo mum of children with autism, ADHD and mental health difficulties, and the family were already using foodbanks.   She backed her claims to the department with letters from her GP and her family social worker, and a full breakdown of her household income and expenditure. 

The correspondence explained her two sons had complex care needs, meaning she was unable to increase her working hours. But the department ignored her letter, she says. When K wrote a second time explaining she had been advised she could ask for the debt to be waived, it responded that it could not engage again as she had already exhausted all the DWP’s appeal routes. 

She said she was constantly spending time on calls, on hold, filling out paperwork - struggling to get hold of anyone to help.

She recalls spiraling into despair while tried to keep the situation from her sons to shield them from worry.

“There were times I was starting to wonder if it was better I wasn’t there,” K remembers. 

After searching for help, K was referred to the North Bristol Advice Centre and the Public Law Project, whose lawyers launched a judicial review of the decision in the High Court.  The review centred on the criteria laid out in the government's Benefits Overpayment Recovery Guide (BORG), which spells out scenarios when the DWP can use its discretion to waive the debt- but was not publicly available.  A judge on the case found it was unlawful to keep the waiver guide secret, and also found the decision to pursue K for the debt was in breach of public sector equality duty. 

The claimant also argued the DWP’s waiver policy was unlawful, but that claim was rejected by the court. The department highlighted to ITV News it has since published the waiver advice online, following the court case. The court found that K should not have to repay the debt, because she had relied on the DWP’s incorrect assertions that she was entitled to a higher level of UC to her detriment - in that she had spent the money on day-to-day living expenses and had lost out on other sources of income as a result of her understanding that she was entitled to the money. 

The court did not find that all overpayment cases should be waived, but set out criteria the DWP should take into account when considering requests, and forced the publication of its policy guidance, to help benefits claimants and their advisers make applications. 

For K, the victory has been bittersweet. While she felt a "huge sense of relief," she is still using foodbanks.

Both of her sons contribute financially to the household, but they are struggling, like millions of others, with the rising cost of living forcing up grocery and energy bills.

"Although the debt has been waived, when you're on Universal Credit - and I think this the false perception - when you’re on Universal Credit, you're still struggling while working, because you don’t bring in enough to cover the rent, food, everything else.”  She added: “I think it’s really wrong to judge people on benefits, on Universal Credit, I never would have envisioned becoming a single parent.” 

K believes the government has the right to recover overpaid benefits on behalf of the taxpayer in many cases. But she says she was motivated to push forward with the landmark case as she believes it goes too far in pursuing debt caused by its own mistakes - sometimes years later - when the recipient has done "everything right."

“Although it was about my case and how I was being treated, it was about try to prevent this from continually happening to people, so that people in my situation won’t have to continually go through this.”

Emma Vincent Miller, the solicitor representing K, said:  “This is a great outcome for K who has shown great fortitude in the face of persistent unlawful refusals by DWP to do the right thing and waive this overpayment, which was caused solely by their own mistakes.

"I would strongly encourage other people who, like K, are facing hardship due to being erroneously overpaid benefit, to seek advice and make a waiver request to DWP Debt Management.”

Mark and Cheryl Whittaker were already struggling on Universal Credit before they received a deduction warning. Credit: Supplied by Mark and Cheryl Whittaker

'That £20 makes a difference' K's court case has also shone a light on how few waivers are sought and granted for benefits debt caused by official error.

The court heard how between April 2021 and August 2022 there were just 19 waivers of benefits debt granted on medical grounds, no waivers provided on financial grounds, no waivers on both medical and financial grounds, and no waivers on any other grounds. 

That was despite the DWP making nearly £230m in official errors affecting hundreds of thousands of people in the financial year ending 2021, the judge was told. 

Debt advice charities say people are being pushed deeper into poverty when officials don't use "discretion."

Mark Whittaker, from Warrington, cares for his wife, Cheryl, 61, who was told around five years ago she is dying with cancer.

“You can imagine," Mr Whittaker recounts. "When I found out she had terminal cancer it was devastating. We’d been married 38 years together. I thought 'now we will get more support from the DWP'. How wrong I was.” 

“I thought, given her situation, we would be treated with respect and sympathy. Instead of that, every meeting was a struggle.”

The couple are left with just £179 a month in Universal Credit to live off jointly, after deductions, including for benefits overpayments, are made.

Mr Whittaker, 62, who worked for the Environment Agency for 30 years, says the way the government handles benefits calculations have left the couple on the breadline, relying on credit cards and borrowing from family.The couple's Universal Credit entitlement, which they shared with ITV News, shows Mr Whittaker's private pensions income impacts their Universal Credit entitlement, which is calculated jointly for couples, rather than individually. 

Cheryl Whittaker, 61, has been diagnosed with terminal cancer. Credit: Supplied by Mark and Cheryl Whittaker

Mr Whittaker, who no longer works and is his wife's fulltime carer, gets a carer's allowance. Mrs Whittaker also receives the Personal Independence Payment (PIP), an additional weekly allowance for people with long-term health or disability issues.Their rent is partially covered by Local Housing Allowance (LHA). But the final amount of Universal Credit is affected by his private pension, which the government appears to consider a provision for both of them.

The couple are part of the end of life care charity Marie Curie's 'nobody should die in poverty' campaign for dying people to be allowed to access their state pension early.

The couple were already in financial despair when they learned a further £20 a month would be docked from their Universal Credit.The DWP claimed in its letter that they had not alerted the department to a change in their circumstances - which Mr Whittaker disputes - and says the couple owes £1,666.47 in overpaid benefit from between May 2018 to May 2019.

It is now clawing that amount back every month from what's left of their Universal Credit, but it is not the last of their financial worries. 

Like many private tenants around the UK, the couple is facing a rent hike soon.Mr Whittaker said the couple's landlord had significantly reduced the amount they had suggested raising the rent, after hearing about their struggles on ITV Granada Reports.

Mark is now Cheryl's full-time carer. Credit: ITV Granada

But the rent will go up £100 a month. It will now exceed the amount they receive for housing from Universal Credit and from the LHA (a government payment for private tenants who have a low income or are on certain benefits.)

Mr Whittaker says their landlord is kind, and has emphasised if the couple are struggling too much, to let them know.But the reality is they will be forced to cut back even further. Mr Whittaker told ITV News he regularly skips several meals a day to ensure his wife, who is receiving chemotherapy, can eat.

“If we didn’t have PIP we would have nothing. We would be destitute,” he said. He believes the £20 monthly should be waived due to their circumstances, and wants the DWP to use greater discretion in decision-making on whether it pursues overpayments from people whose desperate circumstances are clear in its own records.

“They could have written it off, or considered reducing it by half. But, no - they chase us for all of it," Mr Whittaker said."They might think it doesn’t seem like a lot, but even that £20 makes a difference, it’s that little bit more food, and the gas bills are astronomical.” 

'We must strike a balance'

Responding to the Whittakers' case, the government said its priority is to provide people with financial support quickly and compassionately after a terminal diagnosis.

It also highlighted its additional cost of living payment of £1,350 to those most in need in 2023/24 on top of £1,200 to more than 8 million vulnerable households this financial year.

Responding to questions about its handling of benefits overpayment debt, the government said it must strike a balance between ensuring protections are in place for meeting social obligations, and the duty to recover taxpayer money.

It added most benefits are paid correctly, and when recovery isn’t cost-effective it writes off overpayments, so long as they're not fraudulent.

The government also pointed out it had reduced the standard cap on deductions twice in recent years, to 25% of the Universal Credit Standard Allowance, and doubled the period over which new claim advances can be repaid for people moving onto the benefit facing delays.

The government has a £600 million longterm plan to tackle benefits fraud, which it says will recover £2 billion for the taxpayer over three years.

However the DWP, responding to ITV News' FOIA request, could not say how much it spent investigating official error overpayment cases.

Responding to the two cases we highlighted, the spokesperson added: “We support millions of people every year and our priority is they get the benefits they are entitled to as soon as possible and they receive a supportive and compassionate service.

“We carefully balance our duty to the taxpayer to recover overpayments with our support forclaimants on means tested benefits, and safeguards are in place to ensure deductions are manageable, including payment plans.

“Deductions help protect claimants from enforcement actions such as eviction, ensure prioritydebts such as child maintenance are still addressed and recover taxpayers’ money when overpayments are made.”

‘Government debt is forcing people into destitution’ 

Meanwhile, a leading debt charity is warning two million of the nation’s poorest households are currently stuck paying back government debt.

StepChange has raised concerns about how the DWP pursues benefits overpayments – warning the 15-25% monthly deductions leave people already struggling people in further debt. 

In recent years, the DWP has faced separate controversy for pursuing overpayments to carers. In 2019, it said it was aiming to recover around £150 million from around 80,000 carers who were deemed to be at fault for overpayments – despite MPs warning the DWP it should lay off people who were already struggling. 

The government, in its response to questions about the rates at which it claws back overpayments, said people are able to contact the government to discuss the deductions. However StepChange staff told ITV News they were concerned that people are currently repaying benefits overpayments at rates that leave them in serious financial trouble, and suggest many don't know they can challenge the debt. 

Recent research by the charity found its clients on Universal Credit paying back tax credit or benefit overpayment debts were more likely to be living with vulnerabilities, like disabilities or mental health issues. The charity’s head of Policy, Public Affairs and Research, Peter Tutton, said the level for debt repayments set by the DWP was “shocking.” 

 The DWP figures uncovered in K's court case and in official figures released by ITV News showed people rarely apply to have benefits overpayment debt caused by official error waived, and even fewer have their applications granted. “The DWP has some discretion about whether they recover these or write them off, and so this shows they have rarely used that discretion,” Mr Tutton said. 

He said the government needed to consider that many people being pursued for official error overpayments are on benefits that already cannot cover their daily living costs. 

Benefits, including universal credit, and the benefit cap threshold, have all lifted by 10.1% this month, after the government announced they would rise in line with inflation.But StepChange said benefits claimants who faced the burden of more debt repayments were still often left with nowhere left to turn.

“That’s what we see with some of our clients - that debt repayments are causing hardship where they don’t have the money to buy essentials, pushing them further toward destitution," Mr Tutton said.

“What you get is people starting to feel desperation as they’re pushed further into debt, and often then they go into more debt and what we start to see is a vicious cycle emerging.

"People get into more debt, more hardship, because they can’t get enough to make the repayments.”  Last Spring, StepChange’s research found around £1 billion is being deducted from Universal Credit payments every year to cover overpayment debts and advance payments – the repayable sum that plugs the five-week waiting period gap before the benefit starts.

Foodbank use has ramped up as the cost of living crisis deepens. Credit: PA

The charity’s research into the impact of benefit overpayments debts found half of all of its clients who had tax credit or benefits overpayment debts and no income, had average budget deficits of - £55 a month.

Mr Tutton questioned why the government was able to claim historic debts caused by its own mistake, when it enforces limitations on claims and enforcement for other types of debts. For instance, under government energy regulator Ofgem’s ‘back billing’ rules, energy providers are not allowed to send bills for gas and electric used more than 12 months ago, if the companies failed to send accurate bills for more than a year. 

Do you have more information on this story? Please contact us at investigations@itv.com

The DWP has previously faced controversy for pursuing overpayments to carers. In 2019, it said it was aiming to recover around £150 million from around 80,000 carers who were deemed to be at fault for overpayments of over £65.  MPs in the Work and Pensions Committee at the time said the DWP should consider writing off the debt, and only pursuing overpayments of above a £2,500 threshold.  The committee said the department allowed overpayments to build up because of administrative failures and a prolonged lack of resources, and should take accountability for both the surge in errors, and the cost of pursuing them. 

Mr Tutton said the government is not holding itself to the same error standards it sets for companies for consumer protection purposes. 

“If a person has done everything they should have done, there’s an argument the DWP should have waived the recovery due to hardship."

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