Liability to repay an overpayment

If an individual is given assistance in error, the individual is liable to repay that assistance (s. 63(1) of the 2018 Act). However, an individual is not liable to repay the assistance if the error is neither:

• the individual’s fault
• the kind of error that an individual could reasonably be expected to notice (s. 64(1) of the 2018 Act)

An error may result because the individual has failed to supply information about their circumstances that might have resulted in a different determination. This could be because they may have:

• deliberately supplied information that they know to be incorrect or false
• accidentally failed to supply information

The information could be contained or missing from an application form, or a piece of supporting information (such as a report from a medical professional).

It is clear the error is not the individual’s fault when an overpayment as a result of official error has occurred. The individual may still be liable if they could reasonably be expected to have noticed the error.

This means deciding if a hypothetical person, acting reasonably, could be expected to have noticed the error. It is important to note that it does not mean deciding if the individual in the immediate case could reasonably be expected to notice the error (i.e., it is an objective test).

Case managers should refer cases to a Decisions Team Manager for a second opinion where they conclude that one of the following applies:

• the error was the individual’s fault
• the error was one that a person might reasonably have been expected to notice the error

If the Decisions Team Manager agrees with the case manager, the case manager should both:

• refer the case to the Interventions Team
• make a determination without application to address the error.

If the case manager and Decisions Team Manager conclude that an individual could not reasonably have been expected to notice the error, then the case manager:

• makes a determination without application to correct the error
• classifies the overpayment as an error and refer it to the Interventions Team.