Question to the Department for Work and Pensions:

To ask the Secretary of State for Work and Pensions, under what (a) criteria and (b) circumstances his Department disregards a judge's recommendations on not pursuing a claimant for benefit overpayments in criminal cases relating to fraud.

An overpayment of benefit is a civil debt owed to the Secretary of State and separate to any criminal proceedings taken against the claimant.

No criminal court, including the Crown Court or the Sheriff’s Court, has the jurisdiction to reduce, change or otherwise alter the Secretary of State’s decision on an overpayment of benefit. The right to recover an overpayment in accordance with Section 71 of the Social Security Administration Act 1992 remains, despite any action taken by the Court.

Where a claimant is found not guilty of benefit fraud, and receives no sentence or financial penalty, they would still be liable to repay the overpayment. This is because they received benefit which would not have been paid had the true facts been known.

The Department has a duty to protect public funds and to recover overpaid benefits whenever possible. However, the Secretary of State does have the discretion to waive recovery of any overpayment where there are exceptional circumstances. Where a waiver is requested, each case is decided on its merits, with particular attention being paid to overpayments where recovery would be likely to be detrimental to the health and/or welfare of the claimant.

The Department, in line with Treasury guidance, does not generally waive overpayments that have arisen as a result of fraudulent activity, as good faith is one of the key considerations within the waiver policy.

Any disputes about the amount of the overpayment or the Secretary of State’s right to recover are addressed by mandatory reconsideration under social security legislation or by appeal to an independent tribunal service.